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THE 


LAW    OF    CRIMES. 


BY 


JOHN   WILDER   MAY, 

CHIEF  JUSTICE  OF  THE  MUNICIPAL  COURT,  AND  LATE  PROSECUTING 
OFFICER    FOR   BOSTON. 


Second  Edition. 

edited  by 
JOSEPH   HENRY   BEALE,  Jr. 

ASSISTANT  PROFESSOR  OF  LAW  IN  HARVARD  UNIVERSITY. 


BOSTON: 
LITTLE,  BROWN,  AND   COMPANY. 

1893. 


Copyright,  1893, 
By    Hesry    F.    May. 

T 
1<S93 


ffTnitrrsitn  ^Jrrss: 

JOHN  Wilson  ani>  Son,  (.:  \miiridob- 


PREFACE   TO   THE   SECOND   EDITION. 


In  preparing  a  second  edition  of  May's  Criminal 
Law,  it  seemed  best  for  the  sake  of  completeness  to 
treat  certain  subjects  which  had  not  been  considered 
by  the  author.  The  original  plan  of  the  work  in- 
cluded no  discussion  of  the  subjects  of  Criminal 
Pleading  and  Practice  ;  but  it  was  found  that  it 
would  be  better  adapted  for  the  use  of  students  if 
those  subjects  were  briefly  considered,  and  this  has 
accordingly  been  done.  Much  has  also  been  added 
to  the  first  chapter,  which  contains  the  general  prin- 
ciples underlying  the  criminal  law. 

No  attempt  has  been  made  by  the  editor  to  treat 
the  subjects  he  has  introduced  in  an  exhaustive  man- 
ner, or  to  make  a  complete  collection  of  authorities. 
He  has  endeavored,  in  adding  to  the  text,  to  imitate 
the  clearness  and  conciseness  of  the  author ;  and  in 
citing  new  cases,  he  has  intended  to  include  only  such 
as  illustrate  principles  not  before  stated. 

The  alphabetical  arrangement  of  crimes,  adopted 
by  the  author  after  some  misgivings,  has  proved  in- 
convenient, and  is  now  abandoned  ;  and  the  second 
part  of  the  work  has  been  rearranged  according  to 


qs^&o 


iv  PREFACE   TO  THE  SECOND  EDITION. 

what  is  hoped  to  he  a  more  satisfactory  method. 
The  arrangement  is  in  the  main  that  of  Blackstone 
and  of  Bishop. 

The  numbering  of  the  sections  is  of  course  entirely 
changed.  For  the  purpose  of  comparison,  a  tahle  is 
given  by  which  the  section  of  this  edition  may  be 
found  which  corresponds  with  each  section  of  the 
first  edition.  It  was  impracticable  to  note  the  ad- 
ditions of  the  editor  in  the  text  itself ;  but  a  list 
of  the  chief  additions  has  been  prepared,  so  that  it 
is  easy  to  discover  which  of  the  statements  of  law 
are  supported  by  the  authority  of  Judge  May. 

Thanks  are  due  to  Professor  Robinson  of  the  Yale 
Law  School  for  kind  suggestions.  Much  assistance 
has  been  obtained  from  Mr.  II.  W.  Chaplin's  excel- 
lent collection  of  Cases  on  Criminal  Law. 


PREFACE  TO  THE  FIRST  EDITION. 


In  the  following  pages  the  author  has  endeavored 
to  state  briefly  the  general  principles  underlying  the 
Criminal  Law,  and  to  define  the  several  common  law 
crimes,  and  such  statutory  crimes  —  mala  in  se,  and 
not  merely  mala  prohibita  or  police  regulations 1  —  an 
may  be  said  to  be  common  statute  crimes. 

The  brevity  of  this  treatise  did  not  admit  of  a  his- 
tory of  what  the  law  has  been,  nor  a  discussion  of 
what  it  ought  to  be  ;  but  only  a  statement  of  what 
it  is.  In  the  cases  cited  will  be  found  ample  learn- 
ing upon  the  first  of  these  points.  Digressions  upon 
the  second  would  be  out  of  place  in  a  book  designed 
as  a  lawyer's  and  student's  hand-book. 

The  alphabetical  arrangement  has  been  adopted  in 
the  second  chapter,  as  on  the  whole  more  convenient 
for  the  practising  lawyer.  The  student,  however,  will 
perhaps  find  it  to  his  advantage,  on  first  perusal,  in- 
stead of  reading  consecutively,  to  pursue  the   more 

1  On  the  question  of  the  limitation  of  this  power  of  police  regu- 
lation, see  2  Kent's  Com.  340  ;  Com.  v.  Alger,  7  Cush.  (Mass.)  53 ; 
Thorp  v.  R.  &  B.  Railroad  Co.,  27  Vt.  149 ;  Slaughter-House  Cases,  16 
Wall.  (U.  S.)  36. 


vi  PREFACE   TO   THE   FIRST  EDITION. 

scientific  method  of  grouping  the  titles  ;  taking  first, 
for  instance,  crimes  against  the  person,  —  as  Assault, 
Homicide,  and  the  other  crimes  where  force  applied 
to  the  person  is  a  leading  characteristic  ;  then  crimes 
against  property,  —  as  Larceny,  Embezzlement,  Cheat- 
ing, False  Pretences,  and  the  like,  where  fraud  is  a 
leading  characteristic  ;  to  be  followed  by  Robbery, 
Burglary,  Arson,  and  Malicious  Mischief  ;  and  con- 
cluding with  such  crimes  as  militate  against  the  pub- 
lic peace,  safety,  morals,  good  order,  and  policy,  — 
as  Nuisances  generally,  Treason,  Blasphemy,  Libel, 
Adultery,  and  the  like. 

If  the  author  has  succeeded  in  his  design,  the  prac- 
tising lawyer  may  readily  find  within  the  compass  of 
these  few  pages  the  law  which  he  seeks,  and  the 
authorities  in  its  support. 

J.  W.  M. 


TABLE   OF   CONTENTS. 


CHAPTER  I. 

PAG  9 

Of  the  Definition  of  Crime,  and  of  certain  Gen- 
eral Principles  applicable  thereto 1 


CHAPTER  II. 
Of  Criminal  Procedure 71 

CHAPTER  III. 
Offences  against  the  Government 109 

CHAPTER   IV. 

Offences  against  the  Public  Tranquility,    Health, 
and  Economy 139 

CHAPTER  V. 
Offences  against  Religion,  Morality,  and  Decency    172 

CHAPTER   VI. 
Offences  against  the  Person 191 

CHAPTER  VII. 
Offences  against  a  Dwelling-House 237 


viii  TABLE  OF   CONTENTS. 

CHAPTER    VIII. 
Offences  against  Property 252 

CHAPTER  IX. 
Maritime  Offences 319 

INDEX 323 


TABLE    OP    CORRESPONDING    SECTIONS    IN 
THE   FIRST   AND    SECOND   EDITIONS. 


Section 

Section 

Section 

Section 

1st  I'll. 

2ded. 

1st  ed. 

2ded. 

1 

1 

33 

73 

2 

2,3,4 

34 

74 

3 

8 

35 

75 

4 

.      7 

36 

76,  130 

5 

53 

37 

124 

6 

26 

38 

123 

7 

27 

39 

125 

8 

32,  112 

39a 

3 

9 

33 

40 

117,  118,  119,  122 

10 

51 

41 

77,  78-80,  82,  83 

11 

52 

42 

95 

12 

35 

43 

2 

13 

36 

44 

198 

14 

37,68 

45 

200 

15 

38 

46 

195 

16 

39,40 

47 

164 

17 

41 

48 

193 

18 

42 

49 

250 

19 

43 

50 

251 

20 

45 

51 

252 

21 

46 

52 

253 

22 

47 

53 

254 

23 

48 

54 

255 

24 

49 

55 

205 

25 

9 

56 

207,  208,  209 

26 

10 

57 

210 

27 

11 

58 

211 

28 

18 

59 

212 

29 

183,  184,  185 

60 

213 

30 

69 

61 

209 

31 

70,71 

62 

214 

32 

72 

63 

215 

TABLE  OF  CORRESPONDING    SUCTIONS. 


iion 

Sei'i 

HON 

1st  ed. 

•J.  I  ed. 

l-t  ed 

21  ed. 

64 

216 

108 

306 

to 

339 

10!) 

307 

66 

143,  144,  145 

110 

310 

67 

196 

111 

311 

68 

194 

112 

312 

69 

140 

113 

313 

70 

203 

114 

314 

71 

256 

115 

310 

72 

257 

110 

317 

73 

258 

117 

107 

74 

259 

118 

168 

75 

260,  261 

119 

169 

76 

262 

120 

170 

77 

263 

121 

329 

78 

264 

122 

330 

79 

265 

1 23 

:;.;l 

80 

266 

124 

332 

81 

267 

125 

334 

82 

318 

126 

202 

83 

319 

127 

218 

84 

320 

12* 

219 

85 

186 

1 29 

220 

86 

187 

130 

221 

87 

188 

131 

222 

88 

189 

132 

224 

89 

190 

133 

225 

90 

I'.tl 

L34 

226 

91 

154 

135 

227 

92 

155 

136 

22S 

93 

158 

137 

229 

94 

330 

138 

230 

95 

171 

139 

231 

96 

298 

140 

232 

97 

299 

141 

233 

98 

300 

1  12 

234 

301 

143 

235 

Mil) 

302 

144 

236 

[01 

303 

145 

237 

102 

304 

1  If, 

239 

103 

140 

147 

199 

104 

177 

148 

270 

105 

141 

149 

277 

106 

240 

150 

280 

107 

305 

151 

281,  282 

TABLE  OF  CORRESPONDING  SECTIONS. 


XI 


Section 

Section 

Section 

Section 

1st  ed. 

2ded. 

1st  ed. 

2ded. 

152 

283 

184 

147 

153 

284 

185 

148 

154 

278,  285 

186 

149 

155 

286 

187 

150 

156 

288,  289 

188 

151 

157 

289,  291 

189 

152 

158 

288 

190 

153 

159 

290 

191 

338 

160 

271,  272,  273,  275 

192 

241 

161 

274 

193 

242 

162 

276 

194 

243 

163 

292 

195 

244 

164 

293 

196 

324 

165 

294 

197 

325 

166 

295 

198 

328 

167 

296 

199 

159 

168 

297 

200 

160 

169 

201 

201 

161 

170 

172 

202 

162 

171 

173 

203 

165 

172 

174 

204 

166 

173 

175 

205 

245 

174 

176 

206 

246 

175 

143 

207 

247 

176 

144,  145 

208 

248 

177 

321 

209 

197 

178 

322 

210 

203 

179 

323 

211 

134 

180 

217 

212 

135 

181 

178 

213 

136 

182 

179,  180,  181 

214 

138 

183 

182 

215 

139 

SECTIONS  ADDED  BY  THE   EDITOR. 


TnE  following  sections  and  parts  of  sections  have  been  added 
by  tbe  Editur,  and  for  the  statements  of  law  contained  in  them 
he  alone  is  responsible. 

Section  Section  Section 

3  (1st  par.)  120,121  268,269 

5,  6  122  (2d  par.)  272  (1st  and  2.1  par.) 

12-17  126-133  27.'.  (3d  and  4th  par.) 

19-25  137  ^7-  (2.1  par.) 

28-31  142  279 

32  (2d  and  3d  par.)  156,157  282  (end) 

34  163  283  (2d  and  3d  par.) 

44  182  (3d  par.)  287 

184  (2d  par.)  289  (let  and  2d  par.) 

192  291  (2d  par.) 

204  308, 309 

80  (Lst 'and  2d  par.)  205  (2d  par.)  315 

206  317  (2d  par.) 

82  (2d  par.)  208  (2d  par.)  326,327 

84-94 


50 
54-67 

68  (2d  par/ 


96-1 1 1 
113-116 


223  333 

238 

249  337 


TABLE   OF   CASES. 


[the  references 

ARE  TO  PAGES.] 

A. 

Ashbrook  v.  Com. 

160 

Ashburn  v.  State, 

125 

Abbott,  Regina  v. 

297 

Asher,  State  v. 

13,  288 

Adams,  Com.  v. 

21 

Ashwell,  Regina  v. 

265 

v.  People, 

54,  62 

Astley,  Rex  v. 

234 

Regina  v. 

150,  308 

Aston,  Regina  v. 

285 

Rex  v. 

299 

Atkins,  Rex  v. 

12 

Ah  Fat,  People  v. 

217 

U.  S.  v. 

127 

Ailey,  State  v. 

204 

Atkinson  v.  State, 

208 

Albany,  People  v. 

217 

Aultman  o.  Waddle, 

123 

Alderman,  Com.  v. 

95 

Austin,  People  v. 

213 

Alexander  v.  State, 

14,  59,  245 

Avery,  State  v.        149, 

152,  164,  305 

State  v. 

143 

v.  Ward, 

126 

Alford,  State  v. 

193 

Alger,  People  w. 

182 

Allen,  People  v. 

283 

B. 

Regina  v. 

178,  190 

v.  State, 

74,  245 

Baalam  v.  State, 

18 

State  v. 

55 

Babb,  Rex  v. 

135 

Alonzo  v.  State, 

177 

Babcock,  People  v. 

300 

Ambrose  v.  State, 

96 

U.  S.  v. 

126 

Ames,  People  v. 

107 

Bagley,  Com.  v. 

117 

State  v. 

309 

Bailey,  Regina  v. 

271 

Amy,  U.  S.  v. 

65,  95 

Rex  v. 

41 

Anderson  v.  Com. 

168,  189 

v.  State, 

265 

Regina  v. 

61 

Baines,  Rex  v. 

117 

State  v. 

315 

Bakeman,  Com.  v. 

177 

Andrews,  Com.  v. 

308 

Baker  v.  Hall, 

183 

Angelo  v.  People, 

26 

v.  People, 

179 

Ann  v.  State, 

220' 

Regina  v. 

250 

Anone,  State  v. 

14,  59 

v.  State, 

264 

Anonymous, 

9,  43,  232 

State  v. 

196 

Regina  v. 

17 

Balbo  v.  People, 

105 

Rex  v. 

82 

Baldry,  Regina  v. 

104 

Antelope,  The, 

320 

Baldwin,  Com.  v. 

312,  314 

Anthony,  U.  S.  v. 

18,  41 

Balkum  v.  State, 

199 

Appling,  State  v. 

9,  187 

Ballentine  v.  Webb, 

161 

Arden  v.  State, 

127 

Banks,  Regina  v. 

231,  272 

Ardley,  Regina  v. 

288 

Bannen,  Regina  v. 

51 

Armour  v.  State, 

248 

Bantley,  State  v. 

19 

Armstrong,  Regina  v. 

61 

Barber  v.  State, 

228 

State  v. 

176 

Barefoot,  State  v. 

178 

XIV 


TABLE  OF   CASES. 


Barge  p.  Com. 
■  om. 
Barlow,  Com.  p. 
Barnard,  Rex  p. 
Barnes  e.  State, 

Stab 
Barney,  I  !om.  v. 
Barretrj  .  •  a 
Barrett,  People  v. 
Regina  p. 
State  p. 
Barric,  People  p. 
Barronet,  I  x  parte, 
Barrow,  Regina  p. 
Barry,  Com.  o.    65,  194,26 
Barthelemj  p.  People, 
Haiti. -ii.  State  p. 

Barton  p.  People, 

Bass  '■•  State, 

Bates  b.  State, 

Bath,  Mayor  of,  0.  Pinch, 

Battle,  State  0. 

Bavard  0.  McLean, 

Bazeley,  Rex  v. 

Beacall,  Rex  p. 

Beale,  Rex  p. 

Beaman,  Com.  0. 

Bean,  Com.  p. 

Beaslev  p.  People, 

Beatv,  C  s   ''■ 
Beauchamp  v.  Morris, 
Beck,  State  p. 
Beecham,  Regina  p. 
Beechey,  Regina  p. 
Behimer,  State  p. 
Belden,  People  v. 

State  <• 
Belding,  Com.  v. 
Belk  p.  People, 
Bell,  Com.  o. 

p.  Mallory, 

People  p. 

B  State, 

State  ''• 
Benedict  p.  Cowden, 

B    Hart, 

Stair  p. 

.  Regina  p. 
Bennett,  People  p. 

v.  State, 
Benson  r.  McMahon, 
Bentinck  p.  Franklin, 
Berry,  Com.  p. 

Berry  man,  Stat.'  p. 
Bi   t.  People  p. 
Regina  p. 
Beverley's  Case, 


100  I  Bierce,  Sta- 
ll, 159  1  Bigelow,  Com.  P. 
7,  L02  !  Bigley,  K 
289,  291  '  Biles  p.  Com. 
41,  42    ti  Regina  p. 

7:  1  Bin  hall,  Regina  p. 
238,  240    Bird  p.  .lone,, 

120  Regiua  p.        89, 94 

95,  135    Birnej  p.  State, 
23]  '  Biscoe  p.  State, 
•21    Bishop,  Regiua  p. 
59  State  P. 

38,  41  P.  State, 

•2;jo  I  Black,  State  p. 

Blackburn,  Com.  p. 

30,51, 
Blackham,  Rex  p. 
Blades  p.  Higgs, 


l.  268,  280 

150,  152 

04,  L03 

291 


'59  I  Blake  p.  Barnard, 
People  p. 
Regina  p. 
Blanding,  Com.  v. 
Bledsoe  p.  Com. 
Bloom,  State  p. 
Bloomer  p.  l'eople, 

v.  State, 
Bloss  p.  Tobey, 
,  ,  Bodiford  p.  Stat... 
86,  89    Bodwell  p.  Osgood, 

B us  P.  State, 

Boban,  State  v. 
Bohnnnon  p.  Com. 
Holland,  Rex  P. 
Bollman,  Ex  parte, 
Boston,  1  !om.  v. 
Boswell  P.  Com. 

( !om.  p. 
Bott,  I     - 
Boofanti  d   State, 
Bowden,  Regina  P. 
Bowen,  Com.  p. 
Bowers,  Regina  P. 
279  I  Bowles  p.  State, 
30.  251    Bowman  p.  Blythe, 
Regina  p. 
Boyce  p.  People, 

Rex  p. 
Boynton,  Com  0.   41 
Bradford,  Com.  p. 
Bradlangh  p.  Queen, 
Bradshaw,  Regina  p. 
Brady,  Com.  v, 

State  o 
Branch  b   State, 
Brandon,  State  p. 
Bransby,  People  p. 
Brawn,  Regina  p. 
Brazier.  Rex  P. 


181 
14.". 
245 
313 
260 
16 
198,  - 
98,  10U,  274 
11.  13 
L05 
43 
251 
51 
298 
L69 
165,  207.  229 
22.  236 
259 
200 
10,  36 
L67 
1.V2,  163,  154 
48 
L06 
234 
228 
238 
177 
153 
180 
•2ii2 
202.  226 
312 
112 
158 
34 
107 
18 
34 
27S 
207 
2.  283 
217 
118 
95 
L89 
•24 
800,  301 
89,  105 
85 
16,  227 
127 
lio 
808 
30,  32 
194 
178 
267 


TABLE   OF   CASES. 


XV 


Brazil,  State  v. 

142 

143 

Breese  v.  State, 

52,  5 

244 

Brewer,  People  v. 

181 

Brewington,  State  v. 

9 

Brice,  Rex  v. 

244 

Briley,  State  v. 

203 

Britain  v.  State, 

188 

Britt  v.  State, 

233 

Brittain  v.  Bank  of  London 

313 

Broderick,  State  v. 

232, 

234 

Brooks,  Hex  v. 

256 

State  v. 

142, 

143, 

284 

Broughton,  Rex  v. 

117 

Brown,  Com.  v. 

30, 

248, 

2U7 

People  v. 

104, 

178, 

230 

Regiua  v. 

163, 

189 

State  v. 

95, 

263, 

274 

v.  Union  Ins.  Co. 

321 

Brown's  (  'ase. 

12 

Bryan,  Regina  v. 

288, 

290 

Bryans  v.  State, 

93 

Buchanan,  State  v. 

168, 

169 

Buck,  Siate  v. 

134 

Buckland  v.  Com. 

312 

Buckman,  State  v. 

10 

157 

Buckmaster,  Regina  v. 

261, 

2G2 

Buffum's  Case, 

134 

Bull,  Regina  v. 

291 

Bunce,  Regina  v. 

262, 

289 

Bundy,  State  v. 

34 

Bunn,  Regina  v. 

166, 

167 

Bunting,  Regina  v. 

8 

Burden,  People  v. 

130 

Burdett,  Regina  v. 

62 

Rex  v.               103, 

117, 

118, 

152 

Burgdorf,  Slate  v. 

230 

Burgiss,  Rex  v. 

72 

Burke,  Com.  v. 

196, 

230, 

231 

State  v. 

46 

Burnett,  Rex  v. 

8 

Burnham,  State  v. 

150, 

160 

Burr.  U.  S.  v. 

112, 

113 

Burrow  v.  State. 

287 

Burrows,  State  v. 

298 

Burt,  State  v. 

258 

Burton  v.  State, 

2(10 

State  v. 

117 

Bush.  State  v. 

305 

Buster  v.  Newkirk, 

257 

Butcher,  Regina  v. 

299 

Butler,  Com.  v. 

28 

People  v. 

213 

242 

Cabbage,  Rex  v. 
Cagle,  State  v. 


273 


Cahill  v.  People,  71 

Cain  v.  State,  270 

Calder  v.  Bull,  2 

State  v.  142 
Caldwell,  Respublica  v.            18,  160 

Calef,  Com.  v.  188 

Calhoun,  People  v.  118 

Call,  Com.  v.  9fi 

People  v.  267 
Callaghan,  Com.  v.                7,  8,  115 

Calye's  Case.  255 

Cameron,  In  re,  292 

Campbell  ».  Jones,  121 

People  v.  257 

Rex  v.  276 

Cannon,  In  re,  70 

Carabin,  People  v.  269 

Cardelli,  State  v.  103 

Carey,  Com.  v.  215 

Carg',11,  State  v.  144 
Cariile,  Rex  v.                         154,157 

Carlisle  r.  V.  S.  113 
Carll,  U.  S.  v.                                 2.  86 

Carmichael  v.  State,  178 

Carpenter  v.  People,  184 

v.  State,  126 

Carr  c.  Hood,  153 

Regina  v.  63 

Rex  v.  283 
Carroll  v.  State,                       202,  215 

State  v.  177 
Carron,  State  v.                       181,  184 

Carrotti  v.  State,  177 

(  aiter,  State  v.  64 

Cartwright's  Case,  135 

Carwile  v.  State,  140 

Caryl,  People  v.  193 

( !asat  v.  State,  34 
Case.  Regina  v.                       195,  230 

Casey,  Com.  v.  108 

Cash  v.  State,  140 

Caspar,  Regina  v.  306 

<  astro  v.  Queen,  91 

Caswell,  People  v.  306 

Catlin,  Com.  v.  188 

Caton,  Regina  v.  5(i 

v.  Stewart,  116 

Caulkins  v.  Whisler,  313 

Caverly,  State  v.  83 

Chace,  Com.  v.  256 

States.  151 

Chamberlain  v.  People,  128 

Regina  v.  222 

State  v.  127 

Chambers,  State  v.  261 

Champer  v.  State.  195 

Champlin,  Regina  v.  231 
Chandler,  State  v.               2, 126,  174 


XVI 

Chapin,  State  p. 
Chapman,  Com.  p. 
Regina  p. 
Respublica  v. 
p.  State, 
Chappie,  Regina  p. 
Charlton's  Case, 
Chase,  Com.  v. 
p.  People, 

Cheat  w r,  State  »• 

Cheeseman,  In  re, 

Regina  v. 
Cherry's  Case, 
Cheslev,  Com.  p. 
Child  r.  Affleck, 
Chittenden  p.  Brady, 
Chitty,  State  v. 
Choice  y.  State, 
Chopin,  State  v. 
Chrystal.  People  v. 
Chunn,  State  v. 
Churchill,  Com.  o. 
Claasen  p.  U.  S. 
Clair,  Com.  v. 
Clap,  Com.  v. 
Clarissa.  State  e. 
Clark,  //»  re, 
r   Binney, 
Coin.  v. 
People  v. 
v.  State, 
State  v. 
Clarke's  Case, 
Cleaveland  v.  State, 
Cleaves,  State  v. 
Clem  P.  State, 
Clement  d.  Chivis, 

Rex  o. 
Clew,  1 '.  S.  p. 
Click  i-   State, 
Clifford  o.  Brandon, 
Clinton,  Regina  o. 
Closs,  Regina  p. 
Clough,  People  v. 
Clyncard's  Case, 
ta  p.  People, 
I   .bel  o.  People, 
Cockayne  p.  Hodgk 
i  lockran,  State  t>. 
Codd  p.  I  abe, 
Codd's  ( !ase, 
Codrington,  Rex  v 
c  Joe,  <  '"in.  v. 
( 'oilman  p.  Com. 
Colbert  o.  State, 
<\  le,  People  v. 
State  v. 
U.  S.  p. 


TABLE  OF  CASES. 

54   82    Coleman,  State  p, 
1,  ;t    Collberg,  Com.  p 
IC-j    Collins  p.  Com. 
110  Coin.  v. 

260  p.  People, 

58  Regina  p. 

134  p.  State, 

90    Combe  p.  Pitt, 
34    Combes's  Case, 
213    Tonally,  State  v. 
133,  135    Conaut,  U.  S.  p. 
163    Conde,  Regina  v 


261 

96 

154 

133 

120 

32 

225 

L31 

297 

2 

90 

99 

149,150,  152 

L62 

69 

L54 

48 

181,  208 

163,  230,  251 


Connor,  U.  S.  p. 
( ionnofs  p.  People, 
( !ony,  <  '"in-  ''■ 
Cook,  l  "in-  p. 

People  p. 

p.  People, 

P.   M:it>', 

U.  S.  P. 
Coolidge,  U.  S.  v 
<  loombs,  State  v. 
Coon,  People  v. 
Cooper,  I  lorn.  v. 

v.  Creeley, 

p.  People, 

Rex  p. 

p.  Slade, 

State  p. 


34,  5G 

16,  195 

L08 

86,  262 

107 
L63 
51 
115 
311 
202 
LOO 
219,  223 
127 
104 
lis 
127 
58,  125 
181 
102,  176,  189 
86 

272 


isson, 


v.  Stone, 
246   304,  305    Copeland,  Regina  v. 
136    Coppenburg,  State  v. 
1  is    (\,nlv.  Rex  p. 
28    <  lornish,  Com.  v. 
58    Cornwell  p.  State, 
1  in    Corson,  State  v. 
L34    Costello,  People  v. 
281    Costley,  Com.  p. 
[85    Cothran  p.  State, 
143,  L68    Cotteral,  People  v. 
255    ( loulson,  Regina  p. 
299,  309    Coulter,  State  p. 

±\-2    Coward  p.  Wellington 
73    Cowell,  Slate  v. 
283    i  lowen  p.  People, 
1st    Cox  \.  People, 
154  v.  State, 

127  State  p. 

71    Coy,  in  n  , 
15-2    Craige,  State  p. 
297    Crawford.  State  P. 
2'.i-2,  310    Creevey,  Rex  p. 
224  225    Creighton  p.  Com. 
'  296    <  lrew9  p.  State, 
224    I  Irissie,  People  v. 
95    Croghan  p.  State, 
168    Cross,  Hex  v. 


108 

148,  149 

L34 

57 

117 

13,99,186,18*.  L89, 

194,  251 

150 

289 

306 

309 

127 

37 


107 
217 
127 
239,  211 
296,  315 
132 
154 
189 
296 
L3 
224 
189 
65 
260 
33,  181 
L54 
47 
235 
290 
181,  230 
160 


TABLE  OF  CASES. 


XVll 


Croswellj  People  v. 
('rutty,  Com.  v. 
Crown  Batik,  In  re, 
Crowner,  State  v. 
Crozier  v.  People, 
Cruikshank,  State  v. 
Crum  v.  State, 
( 'rump,  Rex  v. 
( Irutchley,  Kex  v. 
Cuffee,  Com.  v. 
Cullins,  Com.  v. 
Cullum,  Regina  v. 
Culver,  Com.  v. 
Cunningham  v.  People, 

People  v. 
Curry  v.  Walter, 
Curtis,  State  v. 
Cutter  v.  State, 

State  v. 


D. 


147,  149 
137 
134 
177 
181 
128 
16,  216 
270 

28 
104 

63 
285 
150 
311 
160 
154 
146 

39 
118 


157 


Daley,  State  v. 

3 

106 

Dalton,  People  v. 

6 

289 

Damon's  Case, 

81 

Danforth,  State  v. 

1 

v.  Streeter, 

121 

Danger,  Regina  v. 

293 

Danville,  &c.  R.  R.  Co. 

v.  Com. 

158 

Darby,  Matter  of, 

133 

Darling  v.  Williams, 

225 

Dascom,  Com.  v. 

95 

Davidson,  State  v. 

103 

Davies  v.  Stowell, 

120 

Davies's  Case, 

232 

Davis,  Com.  v. 

78,  119 

280 

People  v. 

27,  187 

312 

Regina  v. 

289 

Rex  v. 

247, 

306 

v.  State, 

190 

211 

State  v.               55, 

192,  199 

274 

Tennessee  v. 

65 

U.  S.  v. 

255 

v.  Whitridge, 

144 

Dawley  v.  State, 

107 

Dawson,  Rex  v. 

320 

Day,  Regina  v. 

192, 

231 

Dayton,  State  v. 

126 

127 

Deane,  Regina  v. 

94 

Deaton,  In  re, 

132 

De  Bare,  U.  S.  v. 

308 

De  Beranger,  Rex  v. 

167 

Decklotts,  State  v. 

25 

Dee,  Regina  v. 

230 

Deeley,  Rex  v. 

80 

Deerfield,  Com.  v. 

160 

De  Fore,  People  v. 

182 

Defrese  v.  State, 
Dejarnette  v.  Com. 
Delaney,  Ex  parte, 
Delany  v.  People, 

v.  State, 
Delaval,  Rex  v. 
Delaware  Canal  Co.  v.  Com 
Delyon,  State  v. 
Demain,  Com.  v. 
Dennie,  Com.  v. 

Respublica  v. 
Dennis,  Com.  v. 
Dennison,  Kentucky  v. 
D'Eon,  Rex  r. 
Desmarteau,  Com.  v. 
Despard,  Rex  v. 
Detroit  White  Lead  Works, 

pie  v. 
De  Witt,  State  v. 
Dickenson  v.  State, 
I  (ickie,  People  v. 
Dickinson,  Rex  v. 
Diilard  v.  State. 
Dimond,  Com.  v. 
Dinkey  v.  Com. 
Dishon  v.  Smith, 
Doan  v.  State, 
Doane,  Coin.  v. 
Doepke,  State  v. 
Doherty,  State  v. 
Dohring,  People  v 
Dolan,  Regina  v. . 
Donaldson,  State  v. 
Don  Moran  v.-  People, 
Donnallv's  Case, 
Donovan,  Com.  v. 
Doody,  Regina  v. 
Dorr,  State  v. 
Doty,  State  v. 
Doud,  State  v. 
Dougherty,  Com.  v. 
Douglass,  Com.  v. 

v.  State, 

State  v. 
Dove  v.  State, 
Downes,  Regina  v. 
Downing,  Com.  v. 

State  v. 
Doyle,  Com.  v. 
Dresser,  State  v. 
Drew,  Com.  v.  287,  291 

U.  S.  v. 
Driscoll,  Regina  v. 
Drum,  Com.  v. 
Drtiry,  Regina  v. 
Dudley,  Cum.  v. 

Regina  v. 
Duffin,  Rex  v. 


263 

31 

2 

9 

241 

JO 

29 

300 

186 

118 

148 

165 

OS 

148 

82 

59 

Peo- 

160 

167 

203 

315 

270 

188 

276,  278 

181 

116 

58 

269 

254 

26,75 

230 

308 

167 

230 

233,  234 

82 

36,  165 

297 

133,  134 

136 

193 

131 

,160 

15 

33 

19 

59 

140 

83 

100 

294 

37 

201 

225 

94 

144 

49 

190 


XVI 11 


TABLK    OF   (ASKS. 


Duncan  P.  <  -mi. 

195 

-  ate, 

47,  803,  301 

305 

Dunn  p.  lVople 

is: 

Rex  p. 

313 

DuDStOD,   KeX  p. 

129 

1  lupee,  Rex  p. 

301 

Durham  p.  People, 

99 

Dyson,  Rex  p. 

207 

E. 


Eagan,  Com.  r. 

28 

Eagleton,  Regina  p. 

298 

Earl,  Mate  ». 

L33 

Eckels  P.  Slate, 

2U1 

Eckert,  Com.  v. 

8 

Edwards,  <  torn.  v. 

12 

Regina  v. 

233,  255 

Rex  p. 

300 

Edyvean,  Rex  p. 

135 

ii.  Rex  p. 

Eggington,  Rex  p. 

14,  L5 

Eldershaw,  Rex  p. 

27 

Elliott  p.  .McClelland, 

12] 

Ellis   D.  Mate, 

105,  KiO 

Stab-  P. 

115 

Elsmore  p.  St.  Briavels, 

240 

1  .in  a  ''■   1  'auni, 

239 

Emmett  p.  Lyne, 

198 

Empson  p.  Bathurst, 

118 

Engeman,  State  v. 

57 

Ennis  o.  State, 

267 

Errington's  Case, 

209 

Erwin  p.  State, 

224 

Esop,  Rex  p. 

38 

Estell  p.  State, 

21 

1    tes  v.  ( larter, 

3,  190 

State  p. 

288 

•.  People, 

186,  206 

People  v. 

131 

Everett,  Hex  p. 

116 

Evers  p.  I'eople, 

201 

State  p. 

287 

Eyres,  Rex  P. 

118 

iurh,  State  ?'. 

Regina  p. 
Fairman  p.  Ives, 

.  Mate  v. 
Fanning,  State  v. 

i ,"  re, 
Fa  it.  Rex  P. 

.  State  p. 
Farrell  p.  I'eople, 


267,  273 
160 

154 
267 

Hi) 

67 

2  il 

IS", 


Farren,  ( !om.  p,  42 

1  arret  < .  State,  82 

I  at i  ier,  Stal  in., 

Faulkner,  Regina  p.  96,  242 

Faw<  ett,  Rex  p.  800 

lav  p,  i  lorn.,  296 
Fayerweather  p.  Phenix  [ns.Co.  821 

Feiix  P.  Mate,  213 

^     I 

I  i  Iton  p.  U.  S. 

Fenn,  State  v.  2G8,  271,  272 

I'.- uii.ll  p.  State,  190 

P.  <  >' linen,  254 

on  p.  Ivii.mtull,  s< 

P.    State.  17(1 

Stale  p.  224 

Ferris  o.  People,  93 

Field,  People  p.  145,  1 16 

Fifty  Associates  p.  Howland,  144 
Fiudlay,  State  p. 

link  p.  Milwaukee.  ~'.i 

l-inkel-tein.  Regina  p.  317 

1  inlay.   U.S.  P.  3 

1  inn,  <  '"in.  p.  275 

Firth,  Regina  p.  261 
I  ish,  Peopli 

p.  »  lorn.  99 

People  ''.  1U7 

p.  State,  142,  248 

State  r.  14:;.  269 

Fisherman's  <  !ase,  386 

Fitch,  People  v.  314 

Fitchburg  R.  R.,  ( urn.  v.  SO 

dd,  Male  p.  187 

li/.ell   p,    -  -j.;i 

.  i  -in.  p.  18 

1  lanagan  p.  State,  213 

Flanigan  v   Pi  35 

Flannagan  p.  People,  80,  •>! 

Fletcher  p.  I'eople,  H'.i 

Regina  p.  L95,  196,  230,  231 

-    te  p. 

Flowers,  Regina  p.  265 

l'lynn  P.  Mate,  276 

State  p.  306 

Regina  p.  259 

Fooville  p.  McNease,  1    ; 

Ford,  <  "in.  p.  201 

Fort   P.    State,  -JTlt 

Foster,  Com.  u.  284,  818 

State  p. 

Fowler  P.  Slate,  188 

Fox,  Com.  p.  220 

p.  Ohio,  68,  818 

I'oye.  ('.  S.  p.  274 

Fralich  p.  I'eople,  213 

Francis,  Rex  p.  2  12 

Franco  p.  State,  -J47 


TABLE  OF  CASES. 


XIX 


Frank  v.  State,  170 

Franklin,  Regina  v.  *       21 

Franklin  Falls  Co.,  State  v.  157 

Frates,  Coin.  v.  83 

Frazer  v.  People,  18" 

Freeman  v.  People,  ;i;i 

U.  S.  v.  220 

Freer,  People  v.  133 

Fulgham  v.  State,  194 

Fuller,  Rex  v.  162,235 

Furlong,  State  v.  274 


G. 

G -iige,  People  v. 
Gallagher  v.  State, 
tiallears,  Regina  v. 
Galvin  v.  State, 
Garni  v.  State, 
Gannon,  In  re, 
Garbutt,  People  v. 
Gardner,  Regina  v. 

Rex  v. 

v.  State, 
Garland,  State  v. 
Garrett,  State  v. 
Garvey,  State  v. 
Gates,  People  v. 

State  v. 
Gathereole's  Case, 
Gaylor,  Regina  v. 
Gazell,  State  v. 
Gearhart  v.  Dixon, 
German,  State  v. 
Gessert,  State  v. 
Getchell,  People  v. 
Gherkin,  State  v. 
Gibbs  v.  Dewey, 
Gibert,  U.  S.  v. 
Gibson  v.  State, 

State  v. 
Giles,  Regina  v. 

v.  State, 
Gill,  Rex  v. 
Gillon,  Com.  v. 
Gilman,  State  v. 
Gil  more,  State  v. 
Girkin,  State  v. 
Gise  v.  Com. 
Glover,  Com.  v. 
Gnosil,  Rex  v. 
Goddard,  Com.  v. 
Godfrey  v.  People, 

Regina  v. 
Goforth  v.  State, 
Gokling  v.  State, 
Gompertz,  Regina  v. 


125 

201 

257 

215 

211 

135 

33,  35 

271 

233 

193 

133 

105 

36 

177,  238,  239 

12S,  128 

151 

56 

260 

8 

106 

62 

292 

311 

124 

92,  95,  320 

128 

201 

289 

149,  152 

203 

81 

209 

47 

204,  205 

178 

59,  250 

232 

100 

204 

274 

303,  306 

193 

169 


Goode,  State  v.  56 

Goodenough.  Coin.  p.  316 

Goodenow,  State  v.     20,  41,  177,  179 
Goodspeed  v.  Fuller,  120 


Goodwin,  Com.  r. 

85 

Goold,  State  v. 

151, 

193 

Gordon,  People  v. 

15 

Gore's  Case, 

22, 

209 

Gorham,  State  v.    196 

231,  234 

274 

Gorman  v.  State, 

194 

State  v. 

272 

Gosha  v.  State, 

231 

Goss,  Regina  v. 

288, 

290 

Gould,  Regina  r. 

98 

Rex  v. 

278 

Gowen  v.  Nowell, 

120 

Rex  v. 

239 

Graham,  State  v. 

159 

Gran  ice,  People  v. 

60 

Grant,  Com.  v. 

129 

Grantham,  Rex  v. 

300 

301 

Gray  v.  Com. 

106 

Com.  v. 

103 

Rex  v. 

167 

Greathouse,  U.  S.  V. 

112 

Great  Works,  State  v. 

29 

Green  v.  Com. 

211 

Com.  r. 

27,  94,  95 

229 

Regina  v. 

255 

v.  State, 

62 

Greenacre,  Rex  v. 

56 

Greene,  Com.  v. 

268 

Greenough,  In  re, 

296 

Greenwall,  People  v. 

106 

Greenwood,  Regina  v. 

56 

Gregory  v.  Hill, 

144 

Grey,  Com.  v. 

78 

Griffin,  People  v. 

245 

v.  State, 

162 

Grimes  v.  State, 

251 

Guedel  v.  People, 

97 

Guenther  v.  People, 

94,! 

Guernsey,  Regina  v. 

274 

Guiteau,"U.  S.  r. 

62 

Gut,  State  v. 

205 

Guy  v.  Churchill, 

120 

H. 

Haase  v.  State, 
Habersham  v.  State, 
Hackett,  Com.  v. 
Hadden  v.  People, 
Hadley,  Com.  v. 
Haggerty,  People  v. 
Haigh,  Regina  v. 
Haines,  Regina  v. 


152 
137 
17,19,  216  217 
185 
28 
242 
272 
223 


XX 


TABLE  OF  CASES. 


1  i          .  R(  x  v. 

243 

1  lay-.  State  P. 

15 

Halford,  Regina  t>. 

Ila_\  u#i.l.  Rex  o. 

214 

Hall,  Regina  b. 

270 

i 

125 

Rex  b. 

39 

Haywood  v.  S 

Si  ate, 

Hazan     - 

306 

State  v.          8,  70, 

1  la.  .a  P.  <  inn. 

169 

r.  s.  v. 

.  /  x  parte, 

Hallett,  Regina  d. 

L95 

State  '■. 

130 

Halliday,  Regina  v. 

218 

.   (  .nil.  v. 

84 

Halstead  v.  State, 

II. aim.  State  ''. 

140 

llaly,  Rex  B. 

125 

State  v. 

Hamilton  i>.  People, 

1(17 

Helmes,  State  p. 

B.  Ri 

289 

1  leh  enston,  Mate  p. 

133 

Ri  •■.  v. 

277 

50H   P,  •   ■an. 

11 

v.  State, 

273,  274 

i  '<  ople, 

183 

Mate  C. 

52,  128 

B    Mate, 

312 

Hammond,  Rex  p. 

1.17 

State  v. 

149 

Hancock,  Regina  v. 

245 

1 1  ■  ■  1 1 . 1 :  i.  kson  v   ( 'om. 

2  1  8 

Hand,    U.  S   "■ 

L92 

,  P,  Mate, 

203 

Hands,  Regina  b. 

261 

Hennessey,  People 

281 

Hanks  v   State, 

64 

Sta1 

2  7 '.I 

Hannum,  Respublica  v. 

117,  118 

Henry,  i  !om.  v. 

287.  294 

Hanson,  Regina  c. 

197 

State  p. 

244 

Rex  b. 

Hensler,  Regina  v. 

293,  -   l 

Hanway,  I '.  S.  b. 

111 

ll  qsIom  .    Eawcett, 

115 

Hardie,  State  b. 

24 

Hershberger,  ( !om.  p. 

142 

Hardiman,  <  !om.  b. 

99 

1 1   scott'a  <  lase, 

117 

Hardister,  State  v. 

23,  24,  222 

Hetherington,  Rex  v. 

174 

Hargrave,  State  v. 

229 

Hew  son,  1 ' .  S.  b 

1  lai  kins,  » !om.  b. 

297 

11.  yu  ood,  Regina  v. 

316 

Harman's  <  !ase, 

282 

Hicklin,  Regina  b. 

18 

Harmon,  Rex  B. 

276 

ll..  Ion,  State  d 

181 

1  .  S.  v. 

IS 

nbotham  v.  State, 

192 

Harrington,  Com.  v. 

7'.'.  88 

R    .ma  r. 

164 

Harris,  Regina  v. 

239,  285 

R  IX    B 

18,  118 

Rex  v. 

L62,  316 

Hildebrand  v.  People, 

268 

Stat.-  P. 

220.  22:. 

Hildreth,  State  v. 

58,  218 

Harrison  p.  People, 

261 

Hill  v.  - 

Rex  b. 

117 

State  r. 

22  1 

Hart  v.  Albany, 

Hilton,  State  p. 

136 

State  p. 

L57 

Hines  p.  State, 

'.•4 

Hartman  p.  Avejine, 

70 

1 1  iti  licock  p.  Baker, 

Hartnett,  <  !om.  p. 

278,  310 

1  [obson  b  State, 

304 

Hartung  p.  People, 

2.  3 

Hodges  p.  > 

Harvey,  Rex  ••. 

LSI 

1    ,   S.   B 

112 

Harvick  v.  State, 

163 

Unit,  State  P. 

Haskell,  State  p. 

62 

II-  Ider,  <  '..m.  o. 

63 

Id,  Com.  v. 

126 

Mate  D. 

Hause   State  p. 

306 

Holland,  <  !om.  p. 

231 

Hawkins,  Com.  v. 

35 

R     ina  b. 

19 

R 

State  B. 

107 

r   State, 

140,  HI 

Holloway.  Regina  v. 

269,  270 

State  r. 

27  1 

Holly  /-.'state. 

211 

Hayes  p.  People, 

17S 

11. .Illle-    I-      (     .1111. 

54 

Haynes,  People  v. 

t  '..111.    P. 

85,  107.  1 18 

R      iiia  v. 

80 

Is.  ,-. 

32,  49 

Hay-.  ( !om.  )'. 

279 

Homes,  State  B. 

269 

v.  People, 

195,  2il 

;  V.  State, 

127 

TABLE   OF  CASES. 


XXI 


Hooker  v.  Com. 
Hoover,  State  v. 
Hopps  v.  People, 
Hopt  v.  People, 
Horton,  State  v. 
Hoskins  v.  Tarrence, 
Houghton  v.  Baehman, 
House,  State'??. 
Housti  v.  People, 
Howard,  State  v. 

U.  S.  v. 
Howe,  Com.  v. 

People  v. 
Howerton,  State  v. 
Hoxey,  Com.  v. 
Hoxie,  U.  S.  v. 
Hudson,  Com.  v. 

Regina  v. 

U.  S.  v. 
Hughes,  Regina  v.    23,  130, 

Rex  v. 
Hughes's  Case, 
Hull,  Rex  v. 

State  v. 
Humphreys  v.  State, 
Humphries,  Coin.  v. 
Hunckeller,  People  v. 
Hunt  v.  Adams, 

Com.  v. 
Hunter,  Regina  v. 
Huntly,  State  v. 
Hurd  v.  People, 

State  v. 
Hurst,  People  v. 
Hutchinson.  State  v. 
Hutchison  v.  Com. 
Huting,  State  v. 
Hyams,  Kex  v. 
Hyatt  v.  Wood, 
Hyer,  State  v. 


Inness,  State  v. 
Ion.  Regina  v. 
Irwin,  Com.  v. 
Isaac,  Rex  v 


1G6, 


240 

224 

31 

36 

182 

254 

72 

257 

137 

187 

126 

105 

284 

233 

8 

111 

18 

17 

3 

229,  306 

142,  247 

233 

222 

193 

32.  37 

231,  234 

99 

311 

167,  170 

291 

9 

225 

238 

286 

176 

254 

30.  34 

243 

144 

59.  107 


93.  99 

316 

71 

241 


J.  P..,  State  v. 

130 

Jacobs,  Rex  v 

189 

Jackson  v.  People, 

290, 

291 

Rex  v. 

301 

v.  State, 

99,  177 

258 

State  v. 

115, 

142 

Jackson,  U.  S.  v 
Jackson's  Case, 
James,  Com.  v.  105 

Regina  v.  81 

Jansen,  State  v. 
Jarvis.  Regina  v. 

Rex  v. 

State  v. 
Jasper,  State  v. 
Jefferson  v.  People, 

Stale  r 
Jeffries,  Com  v. 
Jellyinan,  Regina  v. 
Jenkins,  Regina  v. 

v.  State, 

State  v. 
Jennison,  Regina  v. 
Jesse  v.  Stair,  * 

Jessop,  Regina  v.  294.  296, 

Joaquin,  State  v. 
John,  State  v. 
Johns  o.  State, 
Johnson  v.  Com. 

v.  People, 

People  v.  289,  298. 

Rex  v. 

v.  State,  240, 

State  v.      30,  32,  36,  55, 

v.  Tompkins, 

v.  Wideman, 
Johnston  v.  Com. 
Jolliffe.  Rex  v. 
Jones  v.  Com. 

v.  Leonard, 

People  V. 

Regina  v 


299 

269, 
213. 
197, 
132. 


36 


v.  State, 
State  v. 


272,  273,  286, 
293 
295 

31,  34.  52,159, 

58,  235,  278, 


U.  S.  v. 
Jordan,  Regina  v. 
Juarez.  People  v.  273, 

Judd.  Com.  v.  107, 

Judge  of  District  Court,  State  v. 


K. 


9 

130 

,  267 

,200 

15 

104 

57 

265 

9 

86 

94 

299 

189 

108 

239 

248 

289 

127 

315 

131 

232 

62 

178 

200 

,  307 

167 

287 

244 

198 

136 

244 

134 

208 

7(1 

163 

288, 

,295 

301 

261, 

299 

320 

2! 

274 

169 

135 


Kanavan's  Case,  10 

Kane  v.  Hibernia  Ins.  Co  101 

Raster,  State  v  160 

Kettlemann,  State  v.  97 

Kee  v.  State,  217 

Keen,  U.  S.  v.  19 

Keenan.  State  v.  126 

Keene,  State  r.  126,133 

115,  142  !  Keeper,  &c,  Com.  ».  144,  146 


\X11 


TABLE  OF  CASES. 


65, 


Keller  p.  State, 
Kelley  p.  People, 

r.  State, 
Kelh ,  People  v. 

S  ate  v. 
Kendall,  Com.  p. 
Kennard,  Com.  v. 
Kenny,  Regina  ». 
Kenrick,  Regina  v. 
Kent,  Si 

Kentucky  p.  Dennison, 
Kenyon  p.  People, 
Kit  P.  Illinois, 
Kessler,  D   S.  p. 
Kew,  Regina  v. 
K>  \  /•.  Vattier, 
Keyn,  Regina  v. 
Killiam,  Regina  p. 
Kilrow  p.  Com. 
Kimball,  State  v. 
King.  <  'inn.  v. 

p.  Lake, 

Res  '■. 

p.  Stevens, 
Kingsbury,  Com.  p. 
Kingsbury's  I  lase, 

Ki y,  State  v. 

Kinsej .  Rex  '•• 
Kirby  p.  Foster, 
Kirk  wood,  Rex  p. 
Kirland  p.  State, 
Klintock,  IT.  S.  v. 
Khun  p.  State, 
Knapp,  < 'uni.  p. 

People  p. 
Kneeland,  Com.  v.    148,174 
Knight,  ( !om    p. 
Knock,  Regina  p. 
K  nowlton,  ( !om    p. 
Knox  p.  New  York  City, 

p,  State, 
Knoxville,  Mayor  of,  State  i 
K  i  «  jer,  Suite  v. 
Krummer,  Pe  >ple  p. 
Knuckle  p.  Knuckle, 
Kwok  a-Sing,  Atty.  Gen.  v. 


L. 

Ladd,  Com.  ». 
Lamb  p.  People, 

I '  ople  p, 
Lambert  p.  People, 

Rex  p. 
Lambertson  v.  People, 
Lancaster,  <  'om.  v. 

I.'      ma  v. 


135, 


269, 
L66 


122 


281 


3 

106 
34 

206 
64 

106 
48 

307 

167 
2 

68 

181 
68 

107 

Id 
L23 

60 
298 
1(17 
312 
306 
149 

58 

78 
10H 

69 
108 

72 

2si; 

52 
197 
320 
140 
101 

55 
304 
L28 

46 
is  2 
156 
127 

46 
313 
312 
1 35 
320 


815 
55 
22  1 
126,  166 
151 
190 
2«t:? 
115 


52, 

175, 

1,  180, 


Lancy  v  Havender,  123 

Landretli,  State  p.  30 1 
Lane.  ( lorn.  p.  178,  17'.i 
Lange,  Ea  parte,                  93,  94,  95 

Langford,  Regina  a.  806 

Langmead,  Regina  ''■  309 

Lanigan,  <  lora    p.  -_'7 

Lannan,  <  lorn.  v.  268 

Lapier,  Rex  v.  2-;2 

Lamer.  Regina  p.  2:17 

Larney  v.  1 Cleveland,  7:i 

Lathrop  '■.  Amherst  Bank,  121 

Latimer,  Regina  v.  26 

l.a valley,  State  v.  126 

Law  p.  < !om.  27 
Lawless,  <  lom.  p. 

Lawrence  p.  Com.  11 

Regina  p.  296 

P.  Slate, 
State  P. 

Lawton  p.  Sun  Mut.  Ins.  Co.         321 

Lay  p.  Lawson,  154 

Lay  ton  0.  Harris,  151 

Lea,   State  r.  127 

Leach,  State  r.  137 

Learnard,  State  p.  27 

Learned,  State  v.  87 
Leathers,  U.  S.  t\ 
Leavenworth,  <  lomm'rs  of,  p.  Sel- 


lew, 

l.ea\  ill.  Slate  v. 
Ledford,  State  v. 

Lee  P.    I.acey, 
P.   Mate, 

Leeser's  <  lase, 
Leiii'c.  State  P. 
Leonard,  1  !om.  p. 

People  p. 
Leslie,  Regina  p. 
Lester,  ( lom.  v. 
Level  'a  <  lase, 

Levi   v.   Levi, 

Lew  er  v.  <  lom. 

Lewis   r.  (  '..in. 

People  v. 
Regina  p. 
Rex  p. 

P.  State, 
State  P. 
P.    Walter. 

Libbey,  <  lom.  0. 
Line.  Regina  p. 
I  incoln,  <  lom.  p. 
I. in-. lav  p.  People, 
Liscomb,  People  0. 
Lister,  Regina  p. 
Litchfield,  State  p. 
Little,  Regina  p. 


1 35 

303 

269,  271 

4:{ 

49,  L08 

299 
151,  L52 
L06,  308 

145 
15 

277 

38 

107.  168 

268 

800 

35 
167,  1!I5 
126 
161 
182 
154 
284 
296 
297 
107 

ill 

9 

107 

263 


TABLE  OF  CASES. 


XXlll 


Little  v.  State, 
Littletield,  State  v. 
Livingston  v.  Com. 
Lock,  Regina  v. 
Logan,  U.  S.  v. 
Loggen,  Rex  v. 
Lombard,  People  v. 
Long  v.  Rogers, 

v.  State, 
Lonon,  State  v. 
Loomis  v.  Edgerton, 

v.  People, 
Lopez,  Kegina  v. 

v.  State, 
Lott  v.  Burrel, 
Loud,  Com.  v. 
Louisville,  City  of,  v. 
Lovett,  Com.  v. 
Lowe,  Regina  v. 

v.  State, 
Lowenthal  v.  State, 
Lowry,  State  v. 
Loyd  v.  State, 
Lucas,  State  v. 
Luckey  v.  State, 
Luckis,  Com.  v. 
Luke  v.  State, 
Lyle  v.  Clason, 
Lymus,  State  v. 
Lynch  v.  Com. 

State  v. 
Lyon,  State  v. 
Lyons  v.  State, 


M. 

Mabbett,  Regina  v. 
McAdden.  State  v. 
McAfee,  Com.  v. 
McAtee,  Com.  v. 
McCaun,  People  v. 
McCants,  State  v. 
McCarry  v.  State, 
McCartv's  Case, 
McClean  v.  State, 
McClory  v.  Wright, 
McConnell  v.  State, 
IMcCord  v.  People, 
Mcculloch.  Com.  v. 
McCullough  v.  Com. 
McCune,  State  v. 
MeCuteheon  v.  People, 
Mc Daniel,  Rex  v.      15, 

r.  State, 
WcDaniels, People  v. 
McDermott,  State  v. 


135  1 

McDonald,  Com.  v. 

163,  230 

100 

People  v. 

231 

217 

McDonell,  People  v. 

32 

195,  196,  231 

McDonnell  v.  Henderson, 

132 

9,  65  1 

Mace,  State  v. 

87 

118 

McGahey,  Com.  v. 

71 

225 

McUary  v.  People, 

240 

196 

McGavaran,  Kegina  v. 

196 

233,  234,  235 

McGehee  v.  State, 

209 

195 

MeGlue,  U.  S.  v. 

30 

302 

McGonigal,  State  v. 

37 

262,  268 

McGowan,  People  v. 

98 

61 

McGowen,  State  v. 

240 

107 

McGrath  v.  State, 

243 

132 

Mcintosh  v.  Matherly, 

153 

92 

Mc  In  tyre  v.  People, 

35,  36 

oupe,         155 

McKay,  People  v. 

94 

147 

v.  State, 

201 

223 

McKean,  State  v. 

59 

279 

McKearney,  Kex  v. 

246 

281 

Mackin  v.  People, 

128 

95 

McKinney,  People  v. 

127 

58,  306 

Macloon,  Com.  v. 

62,  64,  320 

55 

McMurray,  People  v. 

196 

136 

McNaghten's  Case, 

30 

261 

McNair  v.  State, 

230 

241 

McNeal  v.  Woods, 

239 

153 

McNeil  v.  State, 

94 

257 

Maconnehey  v.  State, 

37 

34 

McPherson  v.  Cox, 

123 

34 

State  v. 

246,  318 

239 

McReynolds  v.  State, 

178 

184 

McShane,  Com.  v. 

93 

Maddocke,  Rex  v. 

299 

Madge,  Regina  v. 

308 

Madison.  State  v. 

156 

Ma<;ee,  State  v. 

287 

Mahoney  v.  People, 

232,  234 

223 

Maires,  State  v. 

117 

147 

Malek  Adhel,  The,  U.  S. 

v.           320 

194,  211 

Malin,  Respublica  v. 

164 

56 

Mallory,  People  v. 

160 

34 

Malone  v.  State, 

36 

214 

Maloney,  Com.  v. 

83 

54 

People  v. 

257 

112,  114 

Manning,  Regina  v. 

58,  270 

159 

v.  Sprague, 

123 

107 

Mansfield,  Regina  v. 

84 

134 

Manuel,  State  v. 

302 

17,  294 

March,  Rex  v. 

239 

120 

Marcus  v.  State, 

265 

74 

Maria  v.  State, 

211 

232 

Marianna  Flora,  The, 

61,320 

41,  42 

Marigold,  U.  S.  v. 

317,318 

216,  234,  235 

Marler,  State  v. 

33 

234 

Marriot,  Rex  v. 

180 

233 

Marrow,  Regina  v. 

146 

306 

Marsh  v.  Loader, 

27 

XXIV 


TAP.I.F.    ()F    CASES. 


Marsh,  State  v. 
Marshall,  <  loin,  v. 

Rex  r. 

v.  State, 
Martin  p.  (lark, 

State  v. 
i  p.  State, 
Marvin,  State  V. 
Mary  p.  Stat.', 
Mash,  ( '"in.  p. 
Masou,  <  lorn.  p. 

p.  People, 

Rex  p. 
Massage,  State  p. 
Master  p.  Miller, 
Masters,  Regina  v. 
Mather,  People  P. 
Matthews  p.  State, 

State  v. 

p.  Terry, 
Mawbev,  Rex  v. 
Maxwell,  ( lorn,  v. 
M;i) ,  Regina  p. 
Mayberry,  Stair  p. 
Ma\  bill  v.  Raymond, 
Mayers,  Regina  v. 
Mayor,  &c,  Regina  v. 
Mazagora,  Rex  p. 
Mead,  t  !om.  P. 

p.  Young, 
Meek,  Regina  p. 
Mellish,  Rex  v. 
Mercer,  Regina  v. 
Mercersmitu  p.  State, 
Meredith,  Regina  p. 
Merrill,  State  v. 
Merrit,  State  p. 
Mezzara's  <  !ase, 
M  ichael,  Regina  p. 
M  icheaux  /•.  State, 
M  iddleham,  State  p. 
Middleton,  Regina  v. 


Mifflin  v.  Com. 
Millard.  State  v. 
M  iller,  I  !om.  p. 

<■  State, 
Milliman,  Com.  v. 
Mill-  r.  Com. 
ina  v. 

State  P. 
M         p.  People, 
Ming  >•■  Trnett, 
Mi:   ■•>.  I".  S.  e. 
Mink,  Com.  v. 
Mitchell  p.  Com. 

Coin.  v. 

v.  State, 


210, 


146 

3 

88,  312 

36,  H.  42 

121,  123 
202,  226 

277 

177,  188 
242 
41,  44,  L79 
271 
249 
232 
•211 
120 
266 
160, 169,  170 
106 
135 
194 

in: 

86 

282 

166.  169 

122.  123 
195,  196,  231 

41 

19,  315 

26,  27 

313 

130 

282 

116 

55 

12,  194 

279 

156 

150 

51 

271 

48 

262,  265.  298, 

299 

168 

187.  188 

137,  138,  161 

28 

157 

186,  187 

294 

296 

176,  177 

117 

214,  224,  225 

21,  Mr, 

is.; 

117 

3 


Mitchell,  Stater. 

p.  Tibbetta, 

U.S.  o. 
Moah,  Regina  p. 
Mohr,  J  a  n  , 
Molier,  State  v. 
Montgomery  p.  State, 
Moody  p.  People, 

People  p. 
Moor,  l£e^  v. 
M( , 

p.  [Hi b, 

People  v. 

Rex  v. 

State  v 


241 

65 

111,  114 

809 

70 

128,  130 

184,  185 

a   ; 

180 

133 

65,  96,  318 

77.   197 

159 

9,  158,  189,  214,  228. 

254.  298 

Moran,  People  v.  163 

Slate  p.  107 

Mordecai,  State  v.  244 

Moreland,  <  lom.  p.  307 

Mortit,  Rex  p.  274 

Morgan,  State  v.  192 

Morphin,  State  v.  279 

Moi  phv,  Siate  p.  |87 

Morrill,  Com.  p.  17.  293 

State  p.  133 

Morris,  Com.  v.  152 

Regina  v.  100 

PeX     P. 

Morris  Canal  Co.,  State  v.  15G 

Morris  Run  ( loal  <  !o.  p.  Barclav 


<  loal  <  !o. 
Morrison's  Case, 
Morrow,  P.  S.  v. 
Morse,  ( lom,  v. 
Mortimer.  People  p. 
Mortin  p.  Shoppee, 
Mosely  p.  State, 
Moses  p.  I  •uhois, 
Mosher,  People  p. 
Mosler,  <  lom.  v. 
Mnir  P.  State, 
Mulford  p  People, 
Mulholland,  <  lom.  p 

Mllllalv    P.    Pee], I, 

Mullen,  Com.  P. 

State  v. 
Mulligan  b   State, 
Munden  p.  Mate, 
Murphy,  I  lom.  P. 

People  v. 

State  p. 
Murray,  People  v. 

Rex  p. 

State  p. 
Musick,  State  p, 
Mycall,  I  "in.  p. 
Myers  p.  State, 


Ki7.  169 

200 

317 

82,  84 

3 

199 

804,  305 

228 

178 

81,  21  i 

L25 

284 

816 

257 

90.  91 

274 

238 

225 

274 

168,  169,  211.  256 

161,  168 

266,  280 

136,  169 

208 

314 

286 


TABLE  OF  CASES. 


XXV 


N. 


Nail  v.  State, 

136 

Napper,  Rex  v. 

84 

Nay  lor,  Regina  v. 

292 

N  eagle,  In  re, 

65 

Neal,  Com.  v. 

28 

Nee  ley,  State  v. 

224 

Neely,  State  v. 

199 

Negus,  Kegina  v. 

282 

Nelms  v.  State, 

178 

Nelson  v.  Musgrave, 

149 

v.  State. 

213 

Newberry,  People  v. 

53.  5 

Newby,  State  v. 

304 

Newell,  Com.  v. 

7,204 

251 

Newkirk  v.  Cone, 

122 

State  v. 

306 

Newton,  State  v. 

42 

NewYork  Gas  Light  Co. 

People  v 

.158 

Nichol,  Regina  v. 

195 

Nicholls,  Regina  v. 

23 

v.  State, 

244 

Nichols  v.  Com. 

279 

( lorn.  v. 

104 

v.  People, 

267 

Nickerson,  Com.  v. 

228 

U.  S.  v. 

97 

Noble,  State  v. 

80 

Norden,  Rex  v. 

15 

235 

Norris,  State  v. 

129 

Northcot  v.  State, 

305 

Northrup,  State  v. 

106 

Norton,  Com.  v. 

294 

v.  I.add, 

257 

v.  People, 

58 

Rex  v. 

82 

Noves,  State  v. 

168 

169 

Nutt,  State  v. 

99 

o. 


Oaks,  Com.  v. 

9 

Gates,  Com.  v. 

288 

O'Bannon,  State  v. 

180 

O'Brien,  Com.  o. 

106 

State  v. 

217,  223 

243 

O' Bryan  v.  State, 

126 

O'Connell,  Com.  v. 

90 

Oddv,  Regina  ». 

309 

Odell,  Com.  v. 

150 

O'Dogherty,  Regina  v. 

134 

136 

O'Donnell,  Rex  v. 

72 

O'Hara,  Com.  v. 

274 

Okey,  Rex  v. 

119 

Oliver,  State  v. 

194 

O'Malley,  Com.  v. 

267 

O'Neil  v.  State, 
O'Neill  v.  State, 
Onslow,  Regina  v. 
Opie,  Rex  v. 
Orcutt,  People  v. 
Ordway,  Com.  v. 
( (rtner  p.  People, 
( (sborn,  Rex  v. 
Oswald's  Case, 
Oteiza,  In  re, 
Outlaw,  State  v. 
Overton,  Regina  v. 
Owen,  Rex  v. 
v.  State, 


102 

140 

134 

124 

239 

197 

125 

10,  286,  299,  300 

133 

67 

249 

129 

27,  52 

274 


Palmer  v.  People, 

People  v. 

v.  State, 

U.  S.  v. 
Pan  key  v.  People, 
Parish,  Regina  v. 
Parker,  Com.  v. 

Rex  v. 

v.  State, 
Parnell,  Rex  v. 
Parris  v.  People, 
Parshall,  People  v 
Parsons  v.  State, 
Patapsco  Ins.  Co.  v.  Coulter, 
Patchin  v.  Mayor  of  Brooklyn, 
Patrick  v.  Smoke, 
Patten  v.  People, 
Patterson,  State  v 
Patton,  State  v. 
Paul,  U.  S.  v. 
Pauli  v.  Com. 
Payne  v.  People, 
Payson  v.  Maeomber, 

State  v. 
Peacock,  People  v. 
Pearce,  State  v. 
Pearson,  State  v. 
Pearson's  Case, 
Pease,  Com.  v. 
Peat's  Case, 
Pedley,  Rex  v. 
Peltier's  Case, 
Pelts  v.  State, 
Pembliton,  Regina  v. 
Pence  v.  State, 
Pennington,  State  v. 
Pennsylvania  Canal  Co.,  Com.  v 
Perine  v.  Dunn, 
Perkins,  Com.  v. 
Perkins's  Case, 


13,  186,  194, 


183, 
31,  32,  107, 


48,  202,  215, 


255, 


144, 


128, 


26, 


103 
306 
320 
126 
316 
287 
291 

47 
126 
303 
184 
216 
321 
135 
128 
228 
226 
3 
4 
315 
260 
185 
158 
313 
176 
145 

37 
118 
235 
238 
148 
307 
305 
274 
147 
3 
121 

81 

62 


XXVI 


TABLE   OF   CASES. 


Perry,  Com.  v.  158,  160 

Stair  v.  L40 

Petch,  Regina  p.  259 

«  >>ni.  r.  95 

State  p.  130 

Philips,  IN  <.ple  w.  193 

Regina  p.  27 

Rex  p.  165 

Phillips  p.  People,  65,  95 

Rex  v.  '-'To 

Phillpotts,  Regina  v.  I  10 

Philpot,  State  p.  L33 

Pickering,  ( !om.  p.  1*25 

Pierce,  Regina  p.  2t>4 

State  r.  304,  306,  312 

Pike  p.  Hanson,  198 

State  v.  30 

Piper,  Com.  u.  3,  105 

Pirates.  U.  S.  P.  96,  320 

Pistorius  r.  ( lorn,  225 

Pitman,  Rex  v.  2~>4 

Pitts,  Regina  v.  218 

Slat.  34.  99 

Plant.  Rex  p.  97 

Pleasant  p.  State,  230 

Plummer,  State  p.  L2G 

Pocock,  Ri  gina  p.  216 

Polk  p.  State,  33 

Pollard,  Com.  p.  121.  L30 

Regina  p.  28 

Poll  man,  Rex  9.  1 16 

Pomeroy,  <  lorn.  p.  31,  33 
Pond  p.  People,       202,  226.  227,  228 

Porter,  Pe  pie  p.  175 

State  p.  210 
Potts,  State  P. 

Powder  *'<>.  v.  Tearney,  158 

Powell  p.  <  lorn.  313 

Regina  p.  255 

Respublica  v.  299 

State  p.  9,  159,  175 

Powers  p.  Dubois,  150 

Pratt  p.  Hutchinson,  156 

r.  Price,  126 

Regina  v.  267 

Preston  p.  People,  96 

p.  State,  "11,219 

Price  p.  state,  219 

Pridgen,  Stale  r.  1  16 

Priester  p.  Angley,  228 
Prince,  Regina  p.  41,43, 185,  262,  298 

Privett,  Regina  p.  274 

I'nilia-eii,  State  V.  43 

Proprietors,  &c,  Com.  v.  29 

Pn       s,  Rex  p.  63,  308 

Prudhomme,  State  v.  107 

Primer  p,  (  lom.  188 
Ptyor,  State  v. 


Purdy,  State  p. 
Purse,  Male  p. 
Putnam,  t  lom.  p. 

p.  Putnam, 
Pywell,  Rex  p. 


Q- 


Quin,  People  v. 
Quinn  p.  People, 


116 
158 
L78 
ITS 
166 


196 
245 


11. 


Radford,  Regina  p. 

316 

Rafferty  p.  People, 

35, 

215 

Rahl,  State  p. 

INS 

Railway  <  !o.,  Regina  v. 

29 

Ramsey,  Com   p. 

Tit 

Randall,  <  Join.  p. 

20, 

L94 

Randell,  Regina  p. 

291 

Randolph,  <  lom.  p. 

13 

People  p. 

27, 

229 

Rankin,  State  p. 

157 

Ranney  p.  People, 

287 

Wathlnm,  People  P. 

62 

Rauscher,  U.  S.  p. 

6( 

.  67 

Ray,  *  lom.  p. 

56,  309, 

912 

Stat.'  P. 

146 

Raymond,  State  v. 

L30 

Read  p.  Coin. 

210 

212 

Reading,  Rex  p. 

19 

Reanes's  <  !ase, 

234 

Redfield  p.  State, 

228 

Reed  p.  People, 

sit 

Regina  p. 

39 

266 

P.  Slate, 

264 

Stale  P. 

106 

Reekspear,  Ilex  p. 

190 

Reese  p.  Wyman, 

288 

K'ee\  e,  Regina  p. 

Hi4 

Regan,  Regina  v. 

241, 

242 

1,  Ex  parte, 

69 

Reinitz,  People  p. 

315 

Remington  p.  *  'otigdon, 

L54 

Renton,  State  p. 

L43 

Reynolds,  <  !om.  v. 

71,  86 

105 

P,   People, 

97 

p.  r.  s. 

18 

Hire  P.   State, 

222 

307 

Richards,  People  p. 

169 

25 1 

State  P. 

30 

Richardson,  Rex  p. 

306 

u  Rowland, 

122 

V.  State. 

177 

Richels   P.  State, 

200 

Ricker,  State  c. 

54 

TABLE   OF   CASES. 


XXV11 


Rickert,  People  v. 

144 

Rickey,  State  v. 

166 

Ridgway.  Com.  v. 

169 

Riggs  v.  Denniston, 

149 

Riley,  Regina  v. 

272 

v.  State, 

136 

Rinaldi,  Regina  v. 

313 

Rinehart,  State  v. 

177 

Ripley,  State  v. 

168 

Ritson,  Regina  v. 

314 

Robb  v.  Connolly, 

69 

Roberts  v.  People, 

36 

Regina  v. 

162,  163 

v.  Reilly, 

69 

Respublica  v. 

176,  189 

Rex  v. 

117 

v.  State, 

99 

Roberts's  Case, 

112,  114 

Robertson  v.  Bingley, 

136 

Robins,  Regina  v. 

263 

Robinson,  Ex  parte, 

132 

v.  Com. 

178 

People  v. 

18,  36 

Regina  v. 

297 

State  v. 

304,  311,  313 

Robson,  Rex  v. 

268 

Roby,  Com.  v. 

89,  94,  100 

Roderick,  Rex  v. 

12 

Roebuck.  Regina  v. 

290 

Rogers,  Com.  v. 

31,  32 

Regina  v. 

307 

Rolland  v.  Com. 

246,  247 

Rollins,  State  v. 

185 

Root  v.  King, 

151 

Roscow  v.  Corson, 

321 

Rose,  Regina  v. 

47 

State  v. 

9,  187 

Ross  v.  Hunter, 

321 

v.  Innis, 

286 

v.  State, 

100 

Rowe,  State  v. 

244 

Rowlands,  Regina  v. 

166 

Rowley,  State  v. 

166,  288 

Ruggles,  People  v. 

2,  9,  148, 174, 

175 

Ruhl.  State  v. 

43,  183,  185 

Ruloff  v.  People, 

55,  106 

Runnels,  Com.  v. 

143 

Runyan  v.  State, 

224 

Rusby,  Rex  v. 

156 

Rush,  Com.  v. 

157 

Rushing,  State  v. 

306 

Russell,  Rex  v. 

157,  243 

State  v. 

141 

Rust,  Rex  v. 

247 

Ryan,  Com.  v. 

266 

v.  State, 

287 

State  v. 

274 

St.  Clair,  State  v. 

307 

St.  George,  Regina  v. 

192,  200 

Sales,  State  v. 

124,  164 

Salisbury,  Rex  v. 

285 

Salvi,  Regina  v. 

100 

Sam,  State  v. 

27 

Sampson,  Com.  v. 

255 

v.  Henry, 

144 

Regina  v. 

291 

Sanders  v.  People, 

126 

Sanderson,  Com.  v. 

151 

Sands,  People  v. 

9 

Sankey,  Com.  v. 

314 

Sarony,  State  v. 

288 

Sasser  v.  State, 

312 

Sattler  v.  People, 

306 

Saunders,  Regina  v.     9 

22, 195,  209, 

230 

Savannah  Pirates,  The, 

319 

Savin,  In  re. 

134 

Savoye,  State  v. 

168 

Sayre,  Com.  v. 

33 

Seaife,  Regina  v. 

108 

Scates,  State  v. 

217 

Schenck  v.  Schenck, 

153 

Schlagel,  State  v. 

59 

Schlencher  v.  State 

36 

Sehlottman,  State  v. 

156 

Schmidt,  Regina  v. 

308 

Schomp  v.  Schenck, 

122 

Schwartz  v.  Com. 

130 

Com.  v. 

292 

Scott  v.  Com. 

31 

v.  People, 

288 

State  v. 

6 

v.  U.  S., 

99 

Scovel,  State  v. 

307 

Scripture,  State  v. 

246 

Seacord  v.  People, 

158 

Searing,  Rex  v. 

257 

Searls  v.  Viets, 

228 

Sedley's  Case, 

9 

Selway,  Regina  v. 

235,  276,  278 

Serlested's  Case, 

300 

Serne,  Regina  v. 

209 

Severance  O.  Carr, 

269 

Shafher®.  State, 

178 

Shall,  People  v. 

311 

Sharman,  Regina  v. 

309 

Sharpe,  Regina  v. 

18 

Sharpless,  Com.  v. 

9, 10,  148 

Shattuck,  Com.  v. 

144 

Shaw,  Com.  v. 

79,  254,  261 

People  v. 

108 

Shearm  v.  Burnard, 

80 

Sheffill  v.  Van  Deusen, 

153 

\  X  V  1 1 1 


TABLE   OF  CASES. 


Shelledv,  State  v. 

Shellraire,  U.  S   v.  127, 

ih  rd  ■■■  People, 

Kegina  v. 

i:  \  p. 

State  '■. 
Sheriff,  i  !om.  «•. 
Sherley  v.  lit-.:-, 
Sbermer,  Stun-  p. 
,  I;  gina  '■• 
Shippev,  State  r. 
Shipworth,  Regina  p. 
Shoemaker  r.  Mate, 
Sholes,  <  !om.  v 
Shorter  *•.  I'eople, 

ii  .  State  v. 
Shurtliff,  State  p.  51, 

Si  Hem,  Any.  Glen.  '•• 
Silsbee,  ('"in.  v. 

I    0.  Slat.', 

Simmons  v   Kelley, 

State  V. 

v.  \  .  S. 
Simons,  Rex  v. 

State  v.  124, 

Simpson  p.  State, 
Simpson's  Case, 
Sim-.  State  v. 
Slack,  ( !om.  P. 

People  '•. 
Slatterv,  <  lorn.  p. 

v.  "People, 

v.  Si 
Slaughter  o.  State, 
Sliugerland,  State  v. 
Sloane,  State  v. 
Smiley,  State  o. 
Smith  p.  Com.  12,  13,  31 

( 'din.  o.  54,  125 

t\  People,  166 

People  p. 


Regina  p.     23,  27.  220,  307, 

Rext>.  -2\'-: 

r.  State,     107,151,  177,  186, 

194,  198,  '211,  -2-U 

State  p.    25,  41,42,  L57,  208, 

U.  S.  p. 
Smyth,  Rex  p. 
Snap  p.  People, 

Snefling,  Com.  p.  151,  232 

Snow,  ( !om.  v. 

Stat.-  p. 
Snowley,  Rex  p. 
Snyder,  In  n  ,  289 

p.  People, 
Soley,  Regina  P. 


223 
I2d 

■  - 
221 
305 
206 
136 
122 
272 
257 

30 
133 

•J,iS 

94 

47 
I-'', 
314 
Ml 

8 
128 
117 
■Jit.") 

94 

125 
139 

222 

199 

86 

178 

14 

186 

204 

97 

274 

225 

178 

I'll 

■277 

L68 

302 

309, 

313 

250 

192, 

,  239 

224, 

311 

■1 

146 

303 

.  234 

190 

142 

285 

296 

239 

142 


Solomons.  Regina  >: 

261 

South,  State  v. 

269 

Spalding,  R 

238 

Spani)  P.  Mate, 

30 

Speer,  <  loin.  '•. 

300 

Spencer,  Regina  p. 

221,  222 

Rex  p. 

288 

Spenser,  state  v. 

34 

Spilier,  I: 

155,  222 

Springer,  Com.  p. 

1.  <7 

Id,  • 'din.  o. 

86 

.  (  'din.  r. 

99 

Rex  p. 

282,  284 

p.  State, 

44,  17!) 

Squires,  <  om.  i'. 

L89 

Stalcup,  State  p. 

1-12 

Stanley,  People  p. 

106 

p.  State, 

63 

Slate   v. 

290 

r.  s.  p. 

127 

Stansbury  p.  Marks, 

132 

Stanton  p.  Sedgwick, 

J22 

State  p. 

42 

Stapleton,  Hex  P. 

28 

Starr,  State  p. 

213 

Stearns.  <  'din.  v. 

283 

r.  Felker, 

123 

Stebbins,  <  lorn.  p. 

39,  27U 

Steele  p.  Southwick, 

150 

Stephen-;  p.   M  vers, 

199 

U.  S.  P. 

U  2 

Stephenson,  Com.  v. 

24:!.  315 

Mate  r. 

127 

Stern  P.  State. 

41.  42 

Stevens,  People  p. 

256 

Steventon,  Rex  p. 

P. 7 

Stevick  p.  t  'din. 

90 

Steward,  Any.  Con.  v. 

158 

Stewart  a.  State, 

131,  225 

Mate  r. 

7(1 

Si  ice,  /  x  parU  . 

132 

Stocking,  People  v. 

83 

p.  State, 

103 

Stockley,  <  !om.  v. 

126 

Stoffer  V.  State, 

221 

Stokes  p.  People, 

8,  210 

Stone,  ( 'din.  P. 

p.  Nat.  Ins.  Co. 

321 

p.  State, 

80S 

Storey  p.  state. 

4S 

StdiT,  Rex  p. 

12 

Stotesbury  p.  Smith, 

118 

Stotts,  State  b 

118 

Stover  p.  People, 

in) 

Stow  '•.  <  lonverse, 

Il'.l 

St.  ■  \  ell,  Stale  p. 

183 

Strati. .n.  •  '..in.  v. 

190,  197 

Rex  v. 

49 

TABLE  OF  CASES. 


XXIX 


Stratton,  State  v.  311,  313 

Strauder,  State  v.  34 
Straw,  State  v.                        142,  166 

Streety  v.  Wood,  154 

Stroll,  State  v.  300 

Strupney,  Com.  v.  243 

Stuart  v-  Stuart,  135 

Stupp,  In  re,  67 

Stuiock,  in  re,  133 

Sullivan  v.  Com.  108 

Pennsylvania  v.  220 

Sulston  v.  Norton,  115 

Summers,  Hex  v.  201 

Sumner,  State  v.  140 

Swift  Run,  &c.,  Com.  v.  2y 


Taber  v.  Jenny* 

257 

Taintor,  U.  S.  v. 

19,  20,  2 

Tarver  v.  State, 

200 

Taylor,  Com.  v. 

11 

v.  People, 

160 

People  v. 

238 

Regina  v. 

56,  58, 

317 

Rex  v. 

97 

v.  State, 

3,  140, 

230 

State  v. 

157 

256 

U.  S.  v. 

223 

Teague  v.  State, 

42 

Teischer,  Respublica  v. 

8 

Tenney,  Com.  v. 

97 

Terry,  Ex  parte, 

133 

Thallhimer  v.  Brinkerhof 

121 

Thatcher,  State  v. 

292 

296 

Thomas,  Com.  v. 

190, 

229 

v.  Croswell, 

150, 

154 

v.  People, 

289- 

People  v. 

292 

v.  State, 

232 

Thompson,  Com.  v. 

127 

222 

People  v. 

268 

Regina  v. 

267 

Rex  v. 

215 

v.  State, 

179 

245 

State  v. 

147 

Thorn,  Rex  v. 

301 

Thornton,  State  V. 

96 

Thristle,  Regina  v. 

266 

Thurborn,  Regina  v. 

264 

Thurmond  v.  State, 

316 

Tidwell,  State  v. 

180 

Timmens,  State  v. 

181 

Timmons  v.  State, 

244 

Tinkler,  Regina  v. 

43 

Tipton  v.  State, 

9 

Titus,  Com.  v. 

264 

84, 

42,  43,  44, 

288, 


257,  258, 


Tobin,  Com.  v. 

Todd  v.  Hawkins, 

Tolliver,  Com.  v. 

Tolson,  Regina  v, 

Tomlin,  State  v. 

Tomlinson,  People  v. 

Toogood  v.  Spyring, 

Toole,  State  v. 

Toshack,  Regina  v. 

Towers,  Regina  v. 

Townley.  Regina  v. 

Townsend,  State  v. 

Towse,  Regma  v. 

Trask,  States. 

Travis,  People  v. 

Trebilcock,  Regina  v. 

Treble,  Rex  v. 

Trist  c.  Chi  Ids, 

Tryon,  Com.  v. 

Tuam,  Archbishop  of,  v.  Robe 

son, 
Tul  ibs,  Com.  v. 

v.  Tukey, 
Tuck,  Com.  v.  8 

Tucker,  Com.  v. 
Tuckerman,  Com.  v. 
Tully,  U.  S.  v. 
Turner,  People  v. 

Rex  v.  I 

Turns  r.  Com. 
Tuttle  v.  People, 
Tyler,  People  v. 


81, 


130 
153 
104 
179 
289 
312 
153 
159 
310 
218 
259 
143 

39 
125 
125 
271 
311 
116 

28 

149 
120 

72 
,  93 
242 
284 
320 
133 
166 

83 
127 
103 


u. 

Ulrich  v.  Com. 
Underwood,  State  v. 

Updegraph  v.  Com. 
Uprichard,  Com.  v. 
Upton,  Com.  v. 

V. 


41 

16,63,195.214, 

224.  226 

2,  174 

64 

160 


Vaiden  v.  Com. 
Vallejo  v.  Wheeler, 
Van  Blarcum,  People  v 
Van  Butchell,  Rex  v. 
Vance,  State  v. 
Vanderbilt,  People  v. 
Vandercomb,  Rex  v. 
Van  Houten  v.  State, 

State  v. 
Van  Sickle,  Com.  v. 
Van  Steenbergh  v.  Kortz, 
Vantandillo,  Rex  v. 


224 
321 

238 
222 
220,  226,  228 
156 
99 
187 
187 
160 
321 


XXX 


TABLE   OF   CASES. 


Varley,  Rex  v. 
Varney,  Com.  v. 
Vasel,"State  v. 
Vaughan,  Rex  v. 

State  v. 
Vaux's  '  a 
Vickery,  State  v. 
\"  i  1 1 ;  1 1  p.  Girard's  Ex. 
Vincent,  Exparte, 

w. 


317 
83 
117 

in; 

94,  302 

51 

298 

2 

249 


Waddington,  Rex  v. 

156, 

174 

Wade,  <  !om,  v. 

96 

Wadsworth,  People  v. 

28-1, 

280 

Wagner  v.  People, 

34 

State  v. 

108 

Wagstaffe,  Regina  v. 

23 

Waite,  Com.  v. 

40 

Wakely,  Peoples. 

293 

Walden,  Com.  v. 

24, 

303 

Walker  V.  Brewster, 

157 

People  v. 

36 

Regina  v. 

107 

Rex  v. 

255 

V.  State, 

244 

247 

Wall,  Rex  v. 

311 

Slate  v. 

124 

126 

Wallace,  State  v. 

L76 

Waller  v.  State, 

229 

Walls,  Regina  v. 

276 

Walne,  Regina  v. 

291 

Walsh  v.  People, 

13,  115 

164 

Rex  v. 

261 

Walter,  People  v. 

34 

Warburton,  Regina  v. 

166 

Ward  v.  People, 

56,  254 

275 

Rex  v. 

3 1 5 

v.  State, 

257 

r.  s.  v. 

65 

Warden  o.  State, 

274 

Wardwell,  <  lom.  ''. 

188 

Warickshall's  Case, 

ll '.I 

Warren,  <  lom.  v. 

12,  286 

300 

P(  ople  v. 

99 

r.  State, 

257 

State    ,'. 

240 

Washington  v.  State, 

238 

Wassen  ogle.  People  v. 

291 

Waterman,  <  lom.  v. 

107 

r.  People, 

811 

Water-,  Regina  v. 

i.;7 

State  r. 

312 

Watson,  Rex  v. 

148 

Watt,  Regina  v. 

29 

Watts,  Regina  v. 

256 

,  26< 

Rex  v. 

mi 

Watt-  t\  State,  55 

Weatherby,  State  v.  176 

Weaver  v  l.l<>\  d,  150 

Webb,  Regina  v.  202 

KeX  v.  L56,  313 

Webster,  Com.  v.      1!'.  25,  106,  207. 

208,  209,  211.  212.  21.  , 

Re  ;  111a  r.  20s 

Weekly,  Stale  ,-.  141 

Wei  ss,  <  lom.  v.  42 

Welch  v.  Barber,  134. 

Regina  v.  284 

Wellington,  I  lom.  p.  80 

Welsh,  Rex  v.  317 

Wemyss  v.  Hopkins,  93 

Wenman  v.  Ash,  153 

West,  Regina  0.  180,  206,  2<i4 

Westbeer,  Rex  v.  256 

Weston,  State  ,-.  306 

Whale v,  People  v.  39,  117.  118 

Wheal! v.  Rex  v.   1,4,  12,41,163,299 

Wheeler,  Stale  v.  312 

Whitcomb,  Coin.  v.  293 

Terr  i'.  L89 

White,  Com.  v.         64,  199,  200,  272 

v.  Hass,  -Ul 

Ri    Miau.  201,273.  308 

Rex  p.  126,  L58 

r.  State.  120,  246 

Whitehead,  Com.   v.  L65 

Kex  17.  169 

Whitfii  Id  r.  S.  E.  Ry. 

Whittem  v.  Slate.  136 

Whittemore,  State  v.  131 

Whittier,  U.  S.  ».  102 

Whvte,  Siate  v.  261 

Wic*kham  v.  Conklin,  120 

Widenhouse,  State  v.  140 

Wier's  Appeal,  158 

Wilcox  i>.  Xolze,  69 

State  v.  305 

Wildenhus's  Case,  61 
Wilev,  People*.     260,306,  307,  308 

lie- ina  V.  "l|7 

Wilgus,  Com.  v.  289 

Wilkinson,  Kex  v.  268 

Willard  v.  state,  103 

Willev   0.  Slate,  187 

William^.  Com.  0.  250,  304 

r.  Karnes,  I  19 

People  v.  37,208,258 

Regina  v.  11.  162,  L95 

Kex  r.  118,292 

r   Slate.     27,  41,  42.56,229.  27  1 
Slate  r.      130,  147,  21!',  263,  272, 
274 
D.  S.  r.  103 

Williamson,  Regina  v.  288 


TABLE   OF   CASES. 


XXXI 


82, 

99,  139,  141,  279, 
94,  170,  246. 


Williamson  v.  Sammons, 
Willis  v.  People, 
Rex  y. 
State  v. 
Wills  v.  State, 
Willspaugh,  State  v. 
Wilson  v.  Nations, 
v.  Noonan, 
v.  People, 
People  v. 
Retina  v. 
Rex  v. 
v.  State, 
State  v. 
Wiltberger,  U.  S.  v, 
Windsor,  State  v. 
Wing,  Com.  v. 
Winkworth,  Rex  v. 
Winslow  v.  Nayson 

v.  Railway, 
Wisdom,  State  v. 
VVodston,  Rex  v. 
Wolcott,  State  v. 
Wolfstein  v.  People, 
Wonson  v.  Sayward, 
Wood,  Com.  v. 
v.  McGuire, 
v.  People, 
v.  Phillips, 
Rex  v. 
v.  State, 
Woodfall,  Rex  v. 
Woodhurst,  Regina  v.     195,  196, 

W Iman  v.  Kilbourn  Mfg.  Co. 

Woods  v.  People, 

Woodward,  People  v. 

Woody,  People  v. 

Woolley,  Rex  v.  290, 

Woolsey  v.  State, 

Woolston's  Case, 


120  I  Work  v.  Corrington, 
32  I  Worrall,  U.  S.  v. 
Wortley,  Regina  v. 
Wright,  Coin.  v. 

v.  Meek, 

v.  People, 

People  v. 

v.  State, 

v.  Woodgate, 
Wyatt,  State  v. 
Wylie  v.  Elwood, 
Wyman,  Com.  v. 
Wynn,  Regina  v. 

v.  State, 


181. 


269 

244 

65 

184 

128 

150 

272 

133 

,  285 

145 

318 

,  255 

205 

31 

11 

234 

134 

123 

261 

2 

107 

264 

254 

187 

121 

121 

Ml 

233 

182 

2D 

230 

156 

106 

274 

210 

296 

242 


z. 


70 

62,  164 

258 

149 

122 

34,  2S4 

89 

177,  230,  305 

153 

126 

158 

284 

273 

22 


Yates  o.  People, 

225 

Regina  v. 
v.  Russell, 

130 

135 

Yong's  Case, 

209 

York,  Com.  v. 

209 

220 

Rex  v. 

27 

State  v. 

270 

Young,  Com.  v. 

283 

Regina  v. 

194 

v.  Rex 

289 

299 

v.  State, 

9 

State  v. 

294, 

314 

Young's  Case, 

168 

Younger,  State  v. 

168 

Yslas,  People  v. 

192, 

199 

Zellars,  State  v. 
173  |  Zink  v.  People, 


48 
298 


CRIMINAL    LAW. 


CHAPTER   I. 

OP    THE    DEFINITION  OF  CRIME,   AND  OF  CERTAIN    GENERAL 
PRINCIPLES    APPLICABLE    THERETO. 


§  1.  Crime  defined. 

6.  The  Criminal  Act. 
26.  The  Criminal  Intent. 
35.  Criminal  Capacity. 


§  53.  Intent  in  Statutory  Crimes. 
58.  Justification  for  Crime. 
69.  Classification  of  Criminals. 
77.  Locality  and  Jurisdiction. 


CRIME     DEFINED. 


§  1.  Crime  is  a  violation  or  neglect  of  legal  duty, 
of  so  much  public  importance  that  the  law,  either 
common  or  statute,  takes  notice  of  and  punishes  it.1 

§  2.  By  what  Law  defined.  —  Crimes  are  defined 
both  by  the  common  and  by  the  statute  laws, —  the 
common  law  prevailing,  so  far  as  it  is  applica- 
ble and  not  abrogated  by  statute,  in  most  of  the 
States  of  the  Union.2  The  general  maxims  and  pre- 
cepts of  Christianity  constitute  a  part  of  the  common 

1  See  4  Bl.  Com.,  p.  4,  and  note  by  Christian  (Sharswood's  ed., 
1860)  ;  Rex  v.  Wheatly,  2  Burr.  1125;  s.  c.  and  notes,  1  Lead.  Cr. 
Cas.  1-34 ;  1  Bish.  Cr.  Law,  §  32. 

2  Com.  v.  Knowlton,  2  Mass.  530;  State  v.  Dauforth,  3  Conn.  112; 
Com.  v.  Chapman,  13  Met.  (Mass.)  68. 

1 


o  CRIMINAL   LAW. 

law.1     Tin-  law  of  nations,  also,  is  [cart  of  the  com- 
mon law.2 

§  3.  Statutory  Crimes.  —  A  large  part  of  the  crimi- 
nal law  of  the  jurisdictions  in  this  country  consists 
of  statutes.  Every  statute  relating  to  crime  must  be 
interpreted  in  the  lighl  of  the  common  law  of  crim 
and  the  repeal  of  a  statute,  not  substituting  other 
provisions  in  the  place  of  those  repealed,  revives  the 
pre-existing  law.4 

Statutes,  in  general,  can  have  no  retroactive  effi- 
cacy; and,  especially  in  the  United  Stales,  all  ex 
post  facto  laws,  or  laws  which  make  criminally  pun- 
ishable an  act  which  was  not  so  punishable  a1  the 
time  it  was  committed,  or  punish  an  offence  hy  a 
different  kind  of  punishment,  or  in  a  differ*  nt  man- 
ner, not  diminishing  the  punishment,  from  that  by 
which  it  was  punishable  before  the  statutes  veere 
passed,  are  prohibited  by  the  Constitution  ui'  tho 
United  States.5 

On  the  other  hand,  when  the  common  law  or  a 
statute  creating  an  offence  is  repealed,  or  expires 
before  judgment  in  a  criminal  case,  judgment  cannol 
be  entered  againsi  the  prisoner,  unless  by  a  Baving 
clause  in  the  statute  excepting  pending  cases;  and 

ill  such    cases,    if   the    statute   expins    alter    judgmi  id 

1   People  '•   Ruggles,  S  Johns.  (X  Y.)  290;  Updegraph  v.  Com.,  11 
R    (Pa.)  394;    Rex  v.  Wodston,  2  Stra.  834;    Vidal  v.  Girard's 
Executors,  2  How.  (U.  S.)  127;  State  v  Chandler,  2  liar.  | 
Ex  parU  I  telaney,  43  <  !al.  i:- 

-  United  States  v.  Smith,  .">  Wheat.  (U.  S.)  153. 
8  United  States  v.  Carll,  in:,  l    s.  611. 
4  Com.  r.  Churchill,  -J  Mel   (Mass.)  n*. 
Hartung  v.  People,  26  N.  V.  167  ;  28  N.  V.  400;  Calder  v.  Hull,  3 
Dall.  (I  .  S.)  386  :  State  v.  Kent,  65  N.  C.  311. 


GENERAL  PRINCIPLES.  3 

and  before  execution,  the  judgment  will  be  reversed 
or  execution  stayed.1  But  laws  changing  the  rules 
of  evidence  or  of  procedure  2  do  not  come  under  the 
category  of  ex  post  facto  laws. 

If  a  statute  define  a  new  offence,  or  prohibit  a  par- 
ticular act,  without  providing  any  mode  of  prosecu- 
tion or  punishment,  the  common  law  steps  in  and 
supplies  the  mode,  by  indictment;  and  the  punish- 
ment, by  fine  and  imprisonment.3 

§  4.  Criminal  Law  of  the  United  States.  —  Under  the 
government  of  the  United  States  there  are,  strictly 
speaking,  no  common  law  crimes.  That  government 
has  never  adopted  the  common  law.4  Its  criminal 
jurisdiction  depends  entirely  upon  statutory  provis- 
ion authorized  by  the  Constitution;  and  where  the 
statute  makes  punishable  a  crime  known  to  and 
defined  by  the  common  law,  but  does  not  itself  define 
the  crime,  the  common  law  is  resorted  to  for  the 
definition.5 

Crimes  committed  within  its  exclusive  jurisdiction 
within  the  States  are  by  statute  to  be  punished  in  the 

1  Com.  v.  Marshall,  11  Pick.  (Mass.)  350;  Hartuug  v.  People,  22 
N.  Y.  95 ;  United  States  v.  Finlay,  1  Abb.  (C  Ct.  U.  S.)  364;  State  v. 
Daley,  29  Conn.  272 ;  Taylor  v.  State,  7  Blackf.  (Ind.)  93 ;  Com.  v.  Pa. 
Canal  Co.,  66  Pa.  41. 
'       2  Stokes  v.  People,  53  N.  Y.  164 ;  People  v.  Mortimer,  46  Cal.  114. 

3  Com.  v.  Chapman,  13  Met.  (Mass.)  68;  State  v.  Fletcher,  5  N.  H. 
257  ;  State  v.  Patton,  4  Ired.  (N.  C.)  16;  Com.  v.  Piper,  9  Leigh  (Va.) 
657  ;  Keller  v.  State,  11  Md.  525. 

4  United  States  v.  Hudson,  7  Cranch  (U.  S.)  32;  United  States  v. 
Coolidge,  1  Wheat.  (U.  S.)  415.  In  Ohio  and  Iowa  the  same  theory 
prevails.  Mitchell  v.  State,  42  Oh.  St.  383  ;  Estes  v.  Carter,  10  la.  400. 
In  Indiana,  the  common  law,  so  far  as  it  creates  crimes,  is  abolished  by 
statute. 

&  United  States  v.  Hudson,  7  Cranch  (U.  S.)  32 ;  1  Bish.  Cr.  Law, 
§194. 


4  CRIMINAL    LAW. 

same  manner  as  such  crimes  are  punished  bythe  laws 
of  the  particular  Slates  where  they  are  committed.1 

§  5.  Act  and  Intent  must  coexist —  Every  common 
law  crime  consists  of  two  elements:  first,  the  volun- 
tary commission  of  an  act  which  is  declared  by  law 
to  be  criminal ;  second,  the  existence  in  the  offender 
of  a  stair  of  mind  which  is  declared  by  law  to  be 
consistent  with  criminality.  Tins  principle  is  more 
briefly  expressed  in  the  rule  thai  for  the  commission 
of  a  crime  a  criminal  act  must  be  done  with  crimi- 
nal intent.      These  (dements  must  coexist. 

Till:    CRIMINAL    ACT. 

§  6.  Difference  between  Wrong  and  Crime.  —  X<  >t 
rvtry  act  which  is  legally  wrong  is  a  crime.  Private 
wrongs  are  redressed  by  suits  inter  partes.  In  a 
criminal  prosecution  the  governmenl  itself  is  a 
party;  and  the  governmenl  moves  only  when  the  in- 
teresl  of  the  public  is  involved.  The  basis  of  crimi- 
nality is  therefore  the  effect  of  the  act  complained  of 
upon  the  public.2 

^  7.  Moral  Obliquity  not  Essential. —  It  follows  From 
this  that  moral  obliquity  is  not  an  essential  element 
of  crime,  except  so  far  as  it  may  he  involved  in  the 
very  fact  of  the  violation  of  law.  What,  therefore, 
is  criminal  in  one  jurisdiction  may  not  be  criminal 
in  another;  and  what  may  he  criminal  at  a  particular 
period  is  often  found  not  to  have  been  criminal  at  a 
different  period  in  the  same  jurisdiction.  The  gen- 
eral opinion  of  society,  finding  expression  through 
the  common  law  or  through  special  statutes,  makes 

1  United  Slates  v.  Paul,  6  Pel   ( I'.  S.)  141. 
-  Rex  v.  Wheatly,  2  Burr.  1125. 


GENERAL  PRINCIPLES.  5 

an  act  to  be  criminal  or  not  according  to  the  view 
which  it  takes  of  the  proper  means  of  preserving 
order  and  promoting  justice.  Adultery  is  a  crime 
in  some  jurisdictions;  while  in  others  it  is  left 
within  the  domain  of  morals.  Embezzlement,  which 
was  till  within  a  comparatively  recent  period  a  mere 
breach  of  trust,  cognizable  only  by  the  civil  courts, 
has  been  nearly,  if  not  quite,  universally  brought  by 
statute  into  the  category  of  crimes  as  a  modified 
larceny.  The  sale  of  intoxicating  liquors  is  or  is 
not  a  crime,  according  to  the  differing  views  of  pub- 
lic policy  entertained  by  different  communities. 

§  8.  Trifling  Offences  not  Indictable. —  Some  viola- 
tions of  legal  duty  are  said  to  be  so  trifling  in  their 
character,  or  of  such  exclusive  private  interest,  that 
the  law  dues  not  notice  them  at  all,  or  leaves  them 
to  be  dealt  with  by  the  civil  tribunals.1 

§  9.  Three  Classes.  —  Crimes  are  classified  as  trea- 
sons, felonies,  and  misdemeanors,  the  former  being 
regarded  as  the  highest  of  crimes,  and  punished  in 
the  most  barbarous  manner,  as  it  is  a  direct  attack 
upon  the  government,  and  disturbs  the  foundations 
of  society  itself.  It  is  primarily  a  breach  of  the 
allegiance  due  from  the  governed  to  the  government. 
It  is  active  disloyalty  against  the  State ;  and  because 
it  is  against  the  State,  it  is  sometimes  called  high 
treason,  in  contradistinction  to  petit  treason,  which, 
under  the  early  English  law,  was  the  killing  of  a 
superior  toward  whom  some  duty  of  allegiance  is 
due  from  an  inferior,  —  as  where  a  servant  killed 
his  master,  or  an  ecclesiastic  his  lord  or  ordinary. 

1  See  Regina  v.  Kenrick,  per  Ld.  Denman,  5  Q.  B.  62,  in  comment- 
ing upon  Rex  v.  Turner,  13  East,  228. 


6  CRIMINAL   LAW. 

Now,  however,  this  distinction  is  done  away  with 
both  in  this  countrj  and  in  England,  and  such  offences 
belong  to  the  category  of  homicide.1 

§  LO.  Felonies  a  1  common  law  were  such  crimes  as 
upon  conviction  involved  the  forfeiture  of  the  con- 
vict's estate.-  They  were  also  generally,  luit  not 
always,  punishable  with  death.  These  tests  have 
long  since  been  abolished  in  England,  and  what  con- 
stitutes felony  is  now  to  a  greal  extent,  both  there 
and  in  this  country,  determined  by  statutory  regula- 
tion. Whenever  this  is  not  the  ease,  the  courts  look 
to  the  history  of  the  particular  offence  under  consid- 
eration, and  aseertain  whether  it  was  or  was  not  re- 
garded by  the  common  law  as  a  felony.  The  more 
usual  statutory  test  in  this  country  is  that  the  offence 
is  punishable  with  death,  or  imprisonment  in  the 
state  prison.3  The  term  is  now  significant  only  as 
indicating  the  "degree  or  class"  of  the  crime  com- 
mitted.1 What  was  felony  at  common  law,  unless 
the  statute  has  interposed  and  provided  otherwise, 
is  still  regarded  as  felony  in  all  the  States  of  the 
Union,  with  the  possihle  exception  of  Vermont,6 
without  regard  to  the  ancient  test  or  to  the  mode  of 
punishment. 

§  11.  Misdemeanors  include  all  other  crimes,  of 
whatever  degree  or  character,  not  classed  as  treasons 
or  felonies,  and  however  otherwise  punishable.6  Ii 
is  lor  the  most  part  descriptive  of  a  less  criminal 
class  of  acts.  But  there  are  undoubtedly  some  mis- 
demeanors which   involve  more  turpitude   than  some 

1  4  151.  Cum.  75,  92.  4  1  Ross.  <>n  Crimes,  40. 

a  4  I'.l  Com  '.it  6  State  <•.  Scott,  21  Vt.  127. 

8  1  Bish.  Cr.  Law,  §018.  c  l  Rosa,  on  Crimes,  43. 


GENERAL  PRINCIPLES.  7 

felonies,  and  may,  for  this  reason,  be  visited  with 
greater  severity  of  punishment,  though  not  of  the 
same  kind.  What  was  not  felony  by  the  common 
law,  or  is  not  declared  to  be  by  statute,  or  does  not 
come  within  the  general  statutory  definitions,  is  but 
a  misdemeanor,  though,  in  point  of  criminality,  it 
may  be  of  a  more  aggravated  character  than  other 
acts  which  the  law  has  declared  to  be  felony.1 
When  a  question  arises  whether  a  given  crime  is  a 
felony  or  a  misdemeanor,  and  the  question  is  at  all 
doubtful,  the  doubt  ought  to  be  resolved  in  favor  of 
the  lighter  offence,2  in  conformity  to  the  rule  of  in- 
terpretation in  criminal  matters,  that  the  defendant 
shall  have  the  benefit  of  a  doubt. 

§  12.  What  Acts  are  Criminal. —  For  reasons  that  we 
have  already  stated,  it  is  impossible  to  draw  an 
exact  line  between  offences  that  are  criminal  and 
those  which  are  mere  civil  wrongs;  nor  is  an  exact 
classification  of  all  criminal  acts  possible.  The 
more  important  crimes,  including  felonies,  are 
clearly  defined ;  but  the  lesser  offences  can  neither 
be  exhaustively  described  nor  even  named.  Only 
the  general  principles  can  be  stated,  and  it  must  be 
left  to  the  court  to  apply  these  principles  to  the  facts 
of  each  particular  case  as  it  arises.3  Much  of  the 
difficulty  is  removed  by  statutes,  which  commonly 
define  such  minor  offences  as  are  likely  to  arise. 
Many  of  the  smaller  common  law  offences  are  com- 
prised under  the  crimes  of  nuisance,  malicious  mis- 
chief, and  conspiracy. 

1  Com.  v.  Newell,  7  Mass.  245. 

2  Com.  v.  Barlow,  4  Mass.  4?9. 

3  Com.  7\  Callaghan,  9  Va.  Cas  4fi0, 


8  CRIMINAL   LAW. 

§  13.  Offences  against  the  Government.  —  Offences 
of  a  sort  to  affect  the  public  collectively,  that  is, 
to  interfere  with  the  proper  maintenance  of  the  dif- 
ferent departments  of  the  government,  are  crimi- 
nal acts.  Thus  the  embezzlement  of  public  mon- 
eys1 and  the  destruction  of  trees  upon  public  land'2 
are  indictable  offences;  as  are  the  disturbance  of 
a  town-meeting,3  and  fraudulent  voting  at  a  town 
election.4  Corruption  in  public  office  is  criminal, 
whether  the  ofiice  be  executive,5  or  judicial'';  and 
it  is  equally  a  criminal  act  to  interfere,  as  by  brib- 
ery,7 or  subornation  of  perjury,8  with  the  execution 
of  the  duties  of  any  department  of  government. 
And  an  indictment  will  lie  for  a  failure  by  a  public 
officer  to  discharge  the  duties  devolved  upon  him 
by  law.9 

§  14.  Offences  against  Public  Security  and  Tranquil- 
lity. — The  government  protects  not  only  itself,  but 
the  health,  security,  and  tranquillity  of  the  public  at 
large;  and  an  act  which  endangers  either  of  these  is 
a  criminal  act.  Thus,  knowingly  exposing  a  small- 
pox patient  in  the  public  street,  so  as  to  endanger 
the  public,10  keeping  explosive  substances  in  a  town. 

1  Respublica  r.  Teischer,  l  Dall.  (Pa.)  335. 

2  Com.  v.  Eckert,  2  Browne  (Pa.)  249. 
8  Com.  v.  Hoxey,  16  Mass.  385. 

4  <  'mil.  v.  Silsbee  9  Mass.  417. 

s  Cum.  v.  Catlaghan,  2  Va.  ('as.  460. 

fi  People  v.  ( '"'>n.  1 5  Wend.  277. 

7  Regina  v.  Bunting,  7  Onl   524. 

8  1  Hawk.  P.  C.,c.  69,  §  10. 

9  Gearhart  v.  Dixon,  I  Pa  St.  224  (umh!<);  State  v.  Hall,  97  N.  C. 
474. 

•'  Hex  v.  Vantandillo,  4  M.  &  S.  7.3;  Rex  v.  Burnett,  4  M.  &  S. 
272. 


GENERAL  PRINCIPLES.  9 

so  as  to  create  danger  of  an  explosion,1  openly  car- 
rying about  a  dangerous  weapon,  so  as  to  alarm  the 
public,2  and  making  outcries  on  the  public  street, 
in  such  a  way  as  to  annoy  passers,3  are  all  indictable 
acts. 

§  15.  Offences  against  Religion,  Morality,  and  Decency. 
—  Offences  against  religion,  morality,  and  decency 
are  criminal  if  they  are  committed  publicly,  or  in 
such  a  way  as  to  affect  the  public.  Thus,  disturbing 
public  worship  is  a  criminal  act;4  so  is  blasphemy 
or  profane  swearing  in  public.5  Public  obscenity 
in  word  6  or  action  7  is  criminal;  and  an  indictment 
will  lie  for  maintaining  an  indecent  public  exhibi- 
tion.5 Open  public  cohabitation  of  a  man  and  woman 
without  marriage  is  criminal,9  though  a  secret  co- 
habitation is  not. ]0  Common  public  drunkenness  is 
indictable,11  and  so,  it  has  been  held,  is  public  cruelty 
to  animals.12  And  casting  a  human  corpse  into  a 
river  is   criminal,   being  an   outrage   on  the  public 

1  Regina  v.  Lister,  D.  &  B.  209 ;  but  see  People  v.  Sands,  1  Johns. 
(N.  Y.)  78. 

2  State  v.  Huntly,  3  Led.  (N.  C.)  418. 

3  Com.  v.  Oaks,  113  Mass.  8. 

4  State  v.  Jasper,  4  Dev.  (N.  C.)  323. 

5  People  B.  Ruggles,  8  Johns.  (N.  Y.)  290  ;  State  v.  Brewington,  84 
N.  C.  783  ;  State  v.  Powell,  70  N.  C.  67  ;  Young  v.  State,  10  Lea  (Tenn  ) 
165. 

6  Barker  v.  Com.,  19  Pa.  412  ;  State  v.  Appling,  25  Mo.  315. 

7  Sedley's  Case,  1  Keb.  620 ;  State  v.  Rose,  32  Mo.  5C0. 

8  Queen  v.  Saunders,  1  Q.  B.  D.  15  ;  Com.  v.  Sharpless,  2  S.  &  R. 
(Pa.)  91. 

9  State  v.  Cagle,  2  Humph.  (Tenn.)  414. 

10  State  v.  Moore,  1  Swan  (Tenn.)  136  ;  Delany  v.  People,  10  Mich.  241. 
H  Tipton  17.  State,  2  Yerg.  (Tenn.)  542. 

12  United  States  v.  Logan,  2  Cr.  C.  C.  (D.  C.)  259  ;  United  States  17. 
Jackson,  4  Cr.  C.  C.  (D.  C.)  483.     See  Anon.,  7  Dane  Abr.  261. 


10  CRIMINAL   LAW. 

feeling  of  decency.1  In  short,  whatever  tends  to 
the  corruption  of  the  public  morals  is  a  criminal 
act;2  for  the  court,  in  administering  the  criminal 
law,     is    CUStoS    morion    popull.z 

§16.  Offences  against  Individuals- — The  greatest 
difficulty  arises  in  connection  with  offences  against 
the  persons  or  property  of  individuals.  So  far  as 
the  party  injured  is  concerned,  his  wrong  is  righted 
by  a  civil  action.  The  public  is  not  called  upon  to 
interfere,  so  long  as  an  injury  is  private;  nor  can  a 
plaintiff  be  allowed  to  turn  a  declaration  into  an  in- 
dictment.4 The  question  to  be  settled  in  all  casts  of 
the  sort,  therefore,  is  this:  Has  the  public  security 
been  endangered  by  the  offence?  In  all  cases  where 
the  public  peace  has  been  endangered  there  is  clearly 
a  criminal  offence;  and  this  principle  covers  all 
cast's  of  violence  to  the  person.  It  covers  also  all 
cases  where  the  personal  safety  of  an  individual  is 
threatened;  for  the  public  is  bound  to  protect  the 
personal  safety  of  its  individual  members.  So  an 
act,  though  it  fall  short  of  personal  violence,  is 
criminal  if  its  natural  effect  is  to  cause  serious  per- 
sonal injury.  Infecting  drinking  water  by  throwing 
the  carcass  of  an  animal  into  a  well  is  criminal  for 
this  reason;5  as  is  putting  cow-itch  on  a  towel  in 
order  to  communicate  the  disease  to  a  person  using 
the  towel.0  Faltering  a  house  at  night  and  disturb- 
ing the  inmates  so  that  a  woman  therein  was  made 

1  Kanavan's  Case,  1  Mo.  226 

2  Com.  v.  Sharpless,  2  s  &  i;   (Pa.)  91. 

3  Krx  v.  Delaval,  3  Burr,  14.'S4. 
1  Rex  v.  I  >sborn,  3  Burr.  1697. 

6  State  v.  Buckman,  B  \   It.  l'03. 

r'  People  r.  Blake,  i  VTheel.  (N.  Y.)  490. 


GENERAL  PRINCIPLES.  11 

ill  has  been  held  indictable.1  It  was  also  held  a 
criminal  act  to  come  into  the  porch  of  a  house  where 
only  women  were,  and  shoot  dogs  lying  in  the  yard, 
so  as  to  cause  great  fright  to  the  women.2  And 
where  the  defendant  was  shooting  wild  fowl  near  a 
house,  and  a  girl  in  the  house  was  thrown  into  fits 
at  the  sound  of  a  gun,  but  the  defendant,  though 
warned  of  this  fact,  wantonly  discharged  the  gun 
and  injured  the  girl,  he  was  held  guilty  of  a  criminal 
act.3 

§  17.  Offences  against  Property. —  The  public  is  not, 
generally  speaking,  concerned  with  transactions  be- 
tween individuals,  or  interested  in  protecting  private 
property  from  spoliation.  Forcible  acts  of  depreda- 
tion are  violations  of  the  public  peace;  therefore 
forcible  entry  on  land,  and  robbery  of  chattels,  are 
criminal.  It  is  also  the  duty  of  the  public  to  pro- 
tect individuals  when  they  cannot  protect  them- 
selves, as  during  sleep.  In  the  performance  of  this 
duty,  the  criminal  law  forbids  breach  of  a  man's 
dwelling  in  the  night-time,  or  burning  it  at  any 
time,  and  the  taking  of  his  chattels  from  his  posses- 
sion against  his  will ;  these  acts  constituting  the 
crimes  of  burglary,  arson,  and  larceny.  But  where 
a  man  is  in  condition  to  protect  himself,  he  is  not 
generally  afforded  the  additional  protection  of  the 
criminal  law.  Accordingly,  cheating  is  not  gener- 
ally criminal,  but  it  becomes  so  if  accomplished  by 
means  of  false  weights,  measures,  or  tokens,  against 
which  a  man  cannot  protect  himself,  or  by  a  corrupt 

1  Com.  v.  Taylor,  5  Binn.  (Pa.)  277. 

2  Henderson  v.  Com.,  8  Gratt.  (Va.)  708. 
8  Com.  v.  Wing,  9  Pick.  (Mass.)  1. 


12  CRIMINAL   LAW. 

combination  of  two  or  more  persons,  by  which  the 
must  careful  in;m  might  be  deceived.1  For  a  similar 
reason,  it  is  no1  criminal  at  common  law  to  convert 

t te's  own  use  goods  of  another,  of  which  one  has 

the  posession;  for  it  is  merely  a  breach  of  the  trust 
imposed  by  the  owner,  who  has  thus  had  an  opportu- 
nity to  protect  himself.  These  acts  have,  however, 
been  made  criminal  by  statutes,  and  now  constitute 
respectively  the  crimes  of  obtaining  by  false  pre- 
tences,  and   embezzlement. 

Real  property  is  at  common  law  accorded  even 
less  protection  by  the  public  than  chattels:  probably 
because  the  danger  of  depredation  is  less,  and  the 
public  interest  is  therefore  involved  to  a  less  degree. 
No  trespass  on  real  property  which  falls  short  of 
forcible  entry  is  criminal.2  Many  injuries  to  real 
property  have  been  made  criminal  by  statute. 

§  18.  Attempts.  —  An  attempt  is  an  act  done  in  part 
execution  of  a  design  to  commit  a  crime.3  There 
must  be  an  intent  that  a  crime  shall  be  committed, 
and  an  ad  done,  not  in  full  execution,  but  in  pur- 
suance, of  the  intent.4  An  attempt  to  commit  a 
crime,  whether  common  law  or  statutory,  is  in  itself 
a  crime, — usually  a  misdemeanor,  unless  expressly 
made  a  felony  by  statute.8  But  if  the  act,  when  ac- 
complished, would  be  a  violation  of  neither  statute 

1  Rex  v  Wheatly, 2 Burr,  ll •->">,  s  <■  l  W.  151.  273;  Com  v.  Warren, 
6  Mass.  72. 

-  Rex  v  Storr,  3  Hiirr.  1698;  Rex  ».  Atkins, 3 Burr.  1706;  Brown's 
Case,  3  Mo.  177  ,  Com.  v.  Edwards,  l  Ashm.  (Pa.)  46. 

■'■  Smith  v  Com.,  54  Pa   209. 

4  Rex  >:  Wheatly,  2  Bnrr  1125;  8.  c  l  B.  &  II.  Lead.  Cr.  Cas.,  1 
and  note. 

'•  Regina  >:  Meredith,  8  C.  &  P.  589  ;  Rex  v.  Roderick,  7  C.  &P.  795; 
Smith  v.  Com.,  54  Pa.  20'J. 


GENERAL  PRINCIPLES.  13 

nor  common  law, —  as,  for  instance,  the  procuring 
an  abortion  with  the  consent  of  the  mother,  she  not 
being  then  quick  with  child,  —  the  attempt  is  no 
crime.1 

§19.  Solicitations  and  Misprisions.  —  A  solicitation 
to  commit  a  crime  is  not  an  attempt,  being  a  mere 
act  of  preparation ;  and  a  solicitation  to  commit  a 
small  crime  is  nut  regarded  as  of  enough  public  im- 
portance to  be  punished  as  a  crime.  Bat  solicita- 
tion to  commit  a  felony  or  other  aggravated  crime  is 
a  criminal  act ; 3  and  for  this  purpose  any  act  which 
tends  to  a  breach  of  the  peace,  or  a  corruption  of 
public  justice  or  duty,  is  a  sufficiently  aggravated 
crime.4 

Misprision  of  felony,  that  is,  the  concealment  of 
the  commission  of  a  felony,  is  a  criminal  act.5 

§  20.  Failure  of  the  Criminal  Act.  —  It  is  evident 
that,  however  criminal  the  intent  of  a  party,  if  his 
act  failed  to  become  a  criminal  one,  he  cannot  be 
convicted  of  crime.  Thus,  if  one  takes  his  own  watch 
animo  furandi,  thinking  it  to  be  another's,  he  can- 
not be  convicted  of  larceny.  And  where  A.  obtained 
property  by  the  conveyance  of  land,  which  he  repre- 
sented as  unencumbered,  though  he  believed  there 
was  an  encumbrance  on  it,  yet  if  the  encumbrance 
was  invalid  he  is  not  guilty  of  obtaining  by  false 
pretences.6 

1  State  v.  Cooper,  2  Zab.  (N.J.)  52;  Com.  v.  Parker,  9  Met.  (Mass  ) 
253. 

2  Smith  v.  Com.,  54  Pa.  209;  Cox  v.  People,  82  111.  191. 

3  Rex  v.  Higgins,  2  East,  5  ;  Com.  v.  Flagg,  135  Mass.  545  ;  Com. 
v.  Randolph,  146  Pa.  83  ;  s.  c.  33  Atl.  Eep.  388. 

4  Whart.  Cr.  Law,  §  179 ;  Walsh  v.  People,  65  111.  58. 

5  1  Hawkins  P.  C,  ch.  vii. 

6  State  v.  Asher,  50  Ark.  427 ;  s.  c.  8  S.  W.  Rep.  177. 


14  CRIMINAL    LAW. 

§  21.  Effect  of  Individual  Action. —  In  cerl  ain  classes 
of  criminal  acts,  —  offences,  namely,  against  the  per- 
sons or  property  of  individuals, —  the  injury  is  done 
primarily  to  the  individual;  and  the  act  is  a  crimi- 
nal one  only  because  it  is  for  the  public  interest  to 
proteel  individuals  against  such  offences.  Bu1  in 
the  criminal  prosecution  the  public  is  concerned, 
and  not  the  injured  individual;  consequently,  if  the 
elements  of  crime  are  present,  the  public  cannot 
be  affected  by  any  act  of  the  individual.  Thus, 
no  forgiveness  by  the  injured  party,1  or  restitution 
by  the  offender,  can  affect  the  public  right  to  pun- 
ish the  offence;  nor  can  any  act  of  the  injured  indi- 
vidual before  the  offence  is  consummated  prevent 
a  conviction,  provided  the  elements  of  crime  are 
present. 

§  22.  Effect  of  Acquiescence  for  Detection.  —  Where 
the  injured  individual  afforded  an  opportunity  for 
the  commission  of  a  criminal  act  for  the  sake  of  de- 
tecting the  criminal,  the  acquiescence  of  the  indi- 
vidual, such  as  it  is,  does  not  prevent  the  act  from 
being  punishable.2  Thus,  where  a  thief  proposed  to 
A.'s  servant  to  steal  A.\s  property,  and  the  servant, 
having  informed  A.,  was  ordered  to  proceed  in  the 
act  proposed,  and  thereupon  the  aci  was  committed 
and  the  thief  apprehended  upon  the  spot,  he  was  held 
to  be  guilty  of  larceny.8  Bui  it  must  be  plain  thai  the 
act  was  in  no  sense  induced  by  the  injured  party;  for 
if  he  was  active  in  the  commission  of  the  offence,  it 

i  Com.  v.  Slattery,  1  t:  Muss.  423. 

2  Regina  i>.  Williams,  l  C.  &  K   195;    State  v.  Anone,  2  X  &  McC. 
(S.C.)27;  Alexander  v.  State,  12  Tex   540 

8  Rex  v.  Eggington,  2  Easl  P.  C  494,  666  :  8.  c.  2  B.  &  P.  508. 


GENERAL   PRINCIPLES.  15 

is  his  own  act,  and  no  injury  to  him.  If  the  indi- 
vidual is  not  harmed,  there  is  no  public  injury.1 

The  distinction  is  brought  out  clearly  in  two  cases 
stated  in  Foster's  Crown  Law.  In  the  first  case,  one 
procured  himself  to  be  robbed  by  strangers,  that  he 
might  apprehend  them  and  gain  the  reward;  and  this 
was  held  no  crime.2  In  the  second,  one  went  out  on 
the  highway  and  put  himself  in  the  way  of  being 
robbed,  with  the  intention  of  capturing  the  high- 
wayman; and  here  the  robbery  was  held  to  be  a 
crime.3 

A  somewhat  common  case  is  where  the  servant  of 
the  person  whose  house  it  is  designed  to  enter  is  ap- 
proached, and,  by  advice  of  the  master,  consents  to 
assist  the  burglars,  his  purpose  being  to  secure  their 
arrest  and  conviction.  If  in  such  a  case  the  servant 
himself  opens  the  door  for  the  thieves,  the  latter 
cannot  be  held  guilty  of  burglary;  at  most,  their 
offence  is  larceny.4 

§  23.  Effect  of  Consent—  Consent  on  the  part  of  the 
individual  to  the  act  complained  of  will  generally 
prevent  the  act  from  being  a  crime,  provided  the 
consent  is  not  exceeded.  There  are,  however,  cer- 
tain cases  where  the  law  forbids,  or  rather  makes 
void,  consent ;  and  in  such  cases  the  consent  will  not 
avail  the  offender.  A  young  girl,  for  instance,  can- 
not give  a  valid  consent  to  carnal  connection.5     The 

1  Rex  v.  Eggington,  2  East  P.  C.  666  ;  State  v.  Douglass,  44  Kan. 
618. 

2  McDaniel's  Case,  Fost.  C.  L.  121. 

3  Norden's  Case,  Fost.  C.  L.  129. 

4  Rex  v.  Eggington,  2  East  P.  C.  666  ;  State  v.  Jansen,  22  Kan.  498 ; 
State  v.  Hayes,  105  Mo.  76. 

5  People  v.  Gordon,  70  Cal.  467. 


l»j  CRIMINAL  LAW. 

age  at   which  she  becomes  capable  of  consenting  is 
generally   fixed   by  statute. 

If  the  consent  is  to  an  act  which  may  cause  serious 
bodily  harm,  it  is  clearly  void;1  for  such  liana  is  of 
itself  a  public  injury.  Innocent  manly  sports  are  to 
be  encouraged,  and  injury  which  results  in  the  course 
of  such  sports,  fairly  and  honestly  carried  on,  cannot 
be  the  basis  of  a  criminal  prosecution.  But  sports 
which  are  likely  to  cause  serious  injury  or  breach  of 
the  peace  are  not  regarded  as  lawful;  and  where  a 
criminal  prosecution  i.;  founded  upon  an  injury  in- 
flicted in  the  course  ot  such  spoils,  the  consent  of 
the  injured  party  is  no  defence. - 

J5  24.  Effait  of  Contributory  Negligence. —  Though  the 
negligence  of  the  injured  party  contributed  to  the 
injury,  the  defendant  is  none  tin  less  punishable; 
for  the  injury  was  nevertheless  caused  by  his  crimi- 
nal act.3  If  indeed  the  negligence  of  the  injured 
party  might  fairly  he  regarded  as  the  sole  active 
cause  of  the  injury,  the  defendant  is  to  be  acquitted, 
because  he  has  not  in  fact  done  the  act  charged;4 
but  such  negligence  is  not  properly  described  as 
contributory. 

For  the  same  reason,  negligence  by  the  injured 
party  in  caring  for  a  wound  will  not  make  the 
offender  the  less  chargeable  with  the  ultimate  effect 
of  the  wound,  nor  will   refusal   by  the  injured  party 

i  Regina  v.  Bradshaw,  14  Cox  ('.  C.  83. 

-  Foster's  C.  L.  (3d  ed.)  259  ;  Regina  v.  Bradshaw,  L4  Cox  C.  C.  83 ; 

>■:.  119  Mass  350;  State  «.  Underwood,  57  Mo  40.  "^ 
:;  Regina  v.  Kew,  1l'  Cox  C.  C.  355  (but  see  Regina  v.  Bircball,* 

F.  v<;   F.  1087),  Cruin  v.  State,  04  Miss    1  ;   B.C.]  So   1  ;   Bulk  v.  l'eople, 
125  111.  584. 

1  (  nun  v.  State,  6 I  M  iss  1  ,  S.  C.  1  So.  1 ,  Belk  v.  People,  125  111.  584. 


GENERAL   PRINCIPLES.  17 

to  submit  to  an  operation  that  would  have  saved  his 
life;  and  improper  treatment  of  the  wound  by  the 
surgeon  is  equally  unavailing  to  purge  the  offender's 
guilt.1 

§  25.  Effect  of  Guilty  Participation  by  the  Injured 
Party.  —  The  fact  that  the  injured  party  was  injured 
while  himself  engaged  in  an  illegal  act  against  the 
defendant  does  not  lessen  the  criminality  of  the 
offence  ;  for  the  public  wrong  is  equally  great,  though 
the  individual  may  have  suffered  no  more  than  he  de- 
served. Thus,  where  the  injured  party  was  cheated 
while  himself  endeavoring  to  cheat  the  defendant, 
the  latter  is  guilty.2  Where  a  servant  absconds  with 
money  given  him  for  the  master  for  an  illegal  pur- 
pose, he  is  nevertheless  guilty  of  embezzlement.3 
And  where  the  defendant  gave  a  girl  a  counterfeit 
coin,  knowing  it  to  be  counterfeit,  as  a  consideration 
for  illicit  intercourse,  he  was  held  guilty  of  uttering 
the  coin.4 

THE    CRIMINAL    INTENT. 

§  26.  Motive  Immaterial. —  Like  immorality  of  act, 
immorality  of  purpose  is  not  an  element  of  crime. 
The  motive  with  which  an  act  was  done  is  imma- 
terial in  deciding  the  question  of  its  criminality: 
a  crime  may  be  committed  with  a  good  motive, 
while  an  act  done  from  a  sinful  motive  is  not  neces- 
sarily criminal.     Motive  may,  it  is  true,  sometimes 

1  Com.  v.  Hackett,  2  All.  (Mass.)  136. 

2  Regina  v.  Hudson,  8  Cox  C.  C.  305 ;  Com.  v.  Morrill,  8  Cush. 
(Mass.)  571.    See,  however,  contra,  McCord  v.  People,  46  N.  Y.  470. 

3  Rex  v.  Beacall,  1  C.  &  P.  454. 

4  Queen  v. ,  1  Cox  C.  C.  250. 

2 


18  CRIMINAL   LAW. 

be  shown  in  evidence;  but  it  is  merely  as  evidence 
of  intent. 

Motive  must  not  be  confounded  with  intent.  The 
intent  applies  to  and  qualifies  the  act.  Motive  is 
that  which  leads  to  the  act.  And  while  it  is  essen- 
tial in  common  Law  crimes  thai  the  intent  to  commit 
the  crime  should  appear,  either  exj  ressly  or  by  im- 
plication, no  such  necessity  exists  as  to  motive,  and 
it  need  not  be  proved.1 

If,  therefore,  the  intent  to  violate  the  law  exists, 
the  motive,  as  has  been  said,  is  immaterial.  For 
example,  it  is  an  indictable  offence  at  common  law 
to  enter,  without  the  consent  of  the  owner,  an  uncon- 
secrated  burial-ground,  and  dig  up  and  carry  away 
a  corpse  buried  there,  though  it  be  done  openly, 
decently,  and  properly  by  a  relative,  and  from  a 
sense  of  filial  duty  and  religious  obligation.2  Nor 
will  it  be  any  justification  for  a  person  who  inten- 
tionally does  an  act  which  the  lav  prohibits, —  vot- 
ing, for  instance,  —  that  he  conscientiously  believed 
he  had  a  righl  to  vote,  notwithstanding  the  statute;8 
nor  that  the  act  would  be  harmless;4  nor  that  it 
would  be  for  the  public  benefit,5  Nor  can  polygamy6 
or  obscenity7   lie  excused   on   the   ground    that    the 

1   Com.    V.    Hudson,  97  Mass.  .r>G">  ;    Baalam    V.   State,  17   Ala.   451; 
People  >■.  Robinson,  1  Lark  (N.  Y.)  ('.  R.  G49. 
Regina  v.  Sharpe,  7  Cox  C.  C.  214. 

s  United  States  v.  Anthony,  11  Blatch.  C.  Ct.  200.  See  also  same 
case,  2  Green's  Cr.  Law  Rep.  208,  and  note 

4  United  States  v.  Bott,  id.  346  .  -  c   2  Green's  Tr   Law  Rep.  2:t9. 

6  Respublica  v.  Caldwell,  l  Dall.  (Pa.)  L50;  Com.  v.  Balding,  13 
Met.  (Mass  I  10. 

'■  Reynolds  v  Dnited  States,  98  I'   S  1 15 

7  United  States  v.  Harmon,  45  Fed.  Rep.  414;  Regina  v.  Hieklin 
L.  R.  3  Q.  B.  360. 


GENERAL  PRINCIPLES.  19 

offender  acted  from  the  highest  motives  of  religion 
or  morality.  And  one  is  guilty  of  crime  who  refuses 
to  obey  a  statutory  duty  to  call  in  medical  aid  for  a 
child,  though  he  thought  it  irreligious  to  call  in 
such  aid.1  Nor  is  it  of  avail  that  the  real  purpose 
is  other  than  to  violate  the  law,  the  natural  result 
of  the  act  bein<r  to  violate  the  law ;  as  where  one 
assaults  an  officer  in  the  discharge  of  his  duty,  the 
purpose  not  being  to  hinder  the  officer  in  the  dis- 
charge of  his  duty,  but  to  inflict  upon  him  personal 
chastisement,  on  account  of  some  private  grief.  If 
the  act  results  in  the  obstruction  of  the  officer  in 
the  discharge  of  his  duty,  the  offender  is  guilty  of  the 
latter  offence.2 

§  27.  Intent  presumed  from  the  Unlawful  Act.  —  When 
one  does  an  unlawful  act,  he  is  by  the  law  presumed 
to  have  intended  to  do  it,  and  to  have  intended  its 
ordinary  and  natural  consequences,  on  the  ground 
that  these  must  have  been  within  his  contemplation, 
if  he  is  a  sane  man,  and  acts  with  the  deliberation 
which  ought  to  govern  men  in  the  conduct  of  their 
affairs.3  He  is  none  the  less  responsible  for  the 
natural  consequences  of  his  criminal  act  because, 
from  ignorance,  or  carelessness,  or  neglect,  precau- 
tionary measures  are  not  taken  to  prevent  those  con- 
sequences.4 In  some  cases  of  statutory  crimes,  as 
we  shall  see,  this   presumption  is  conclusive   as  to 

1  Regiua  v.  Downes,  13  Cox  C.  C.  111. 

2  United  States  v.  Keen,  5  Mason  C.  Ct.  453. 

3  Cora.  v.  Webster,  5  Cush.  (Mass.)  305;  Rex  v  Mazagora,  R.  &  R. 
291  ;  United  States  v.  Taintor,  11  Blatch.  C.  Ct.  374  ;  s.  c.  2  Green's 
Cr.  Law  Rep.  241,  and  note. 

1  State  v.  Bantley,  44  Conn.  537,  Com.  v.  Hackett,  2  Allen  (Mass.) 
136;  Regina  v.  Holland,  2  M.  &  Rob.  351  ;  Rex  v.  Reading,  1  Keb.  17. 


20  CRIMINAL   LAW. 

the  intended  consequences,  and  cannot  be  met  by 
counter  proof.  As  a  general  rule,  however,  in  those 
cases  win  re  an  act  in  itself  not  criminal  becomes  so 
only  if  done  with  a  particular  intent,  there  the  in- 
tent must  be  proved  by  the  prosecution;  while  in 
those  cases  where  the  art  is  in  itself  criminal  tne 
law  implies  a  criminal  intent,  and  leaves  it.  open  to 
the  defendant  to  excuse  or  justify.1  But  the  unlaw- 
fulness of  the  act  is  a  sufficient  ground  upon  which 
to  raise  the  presumption  of  criminal  intent.2  It  is, 
of  course,  always  open  to  proof  that  there  was  no  in- 
tention to  do  any  act  at  all,  whether  lawful  or  un- 
lawful; as  that  the  person  charged  was  insane,  or 
was  compelled  to  the  act  against  his  will,  or  was  too 
young  to  he  capable  of  entertaining  a  criminal  in- 
tent. So,  at  least  when  the  act  is  criminal  in  its 
nature  and  not  peremptorily  prohibited  by  the 
statute,  it  may  be  shown  that  it  was  done  through 
mistake;  as  where  one  drives  off  the  sheep  of  an- 
other, which  are  in  his  own  flock  without  his  know- 
ledge,3 or,  intending  to  shoot  a  burglar,  by  mistake 
shoots  one  of  his  own  family.4 

§  28.  Constructive  Intent. — The  criminal  intent  need 
not  be  an  intent  to  commit  the  exact  offence  actually 
complained  of.  A  defendant  may  have  intended  to 
do  one  criminal  act,  and  may  in  fact  have  done  an- 
other; for  instance,  intending  to  inflict  severe  bodily 
harm,  he  may  have  killed  the  person  he  intended  only 

1  Rex  v  W Ifall,  5  P>urr.  2667;   State  v.  Goodenow,  65  Me.  30 ; 

3  Greenl.  Ev.  §  13. 

2  Com.  v.  Randall,  4  Gray  (Mass.)  36,  United  States  v.  Taintor, 
11  Blatih.C.  Ct.  374. 

8  1  Hale  P.  C.  507. 
4  Ibid.,  42. 


GENERAL  PRINCIPLES.  21 

to  injure.  In  such  a  case  both  the  elements  of  a 
crime  are  present;  the  act  which  is  criminal  has 
been  done  with  a  wicked  and  criminal  intent;  the 
public  has  been  wronged,  and  the  offender  is  a  fit 
subject  for  punishment.  Yet  it  would  be  too  severe 
a  rule  to  punish  him  in  every  case  of  the  sort,  how- 
ever unexpected  the  result  of  his  act. 

If  the  offender  intended  a  mere  civil  wrong,  an  act 
which  was  not  criminal,  and  without  any  negligence 
on  his  part  a  result  happened  which  is  in  the  nature 
of  a  criminal  act,  it  is  clearly  not  a  crime,  but  an 
accident.1  And  so  if  the  intention  was  merely  to 
do  a  malum  prohibitum,  —  to  break  a  police  regu- 
lation, such  as  an  ordinance  against  fast  driving, — 
and  an  unexpected  result  happened  entirely  with- 
out negligence,  the  offender  should  not  be  held  a 
criminal  because  of  the  result.  The  offence  he  in- 
tended to  do  must  at  least  be  one  which  in  itself  was 
sinful.2 

If  the  offender  intended  a  crime  of  violence,  and 
in  the  course  of  it  committed  another  crime  of  the 
same  sort,  naturally  growing  out  of  it,  he  is  respon- 
sible for  the  crime  he  committed.  Thus,  where  one 
attempted  suicide,  and  accidentally  killed  a  man 
who  attempted  to  prevent  the  suicidal  act,  he  is 
guilty  of  homicide.3  So  where  one  intended  to 
commit  robbery,  but  in  the  course  of  it  killed  the 
victim,  he  is  guilty  of  homicide.4  It  has  even  been 
held  that  one  committing  an  act  of  violence  is  crim- 

1  Regina  v.  Franklin,  15  Cox  C.  C.  163. 

2  Com.  v.  Adams,  114  Mass.  323 ;  Estell  v.  State,  51  N.  J.  L.  182. 
8  Com.  v.  Miuk,  123  Mass.  422. 

*  State  v.  Barrett,  40  Minn.  77, 


22  CRIMINAL   LAW. 

inally  responsible  for  all  consequenc  s,  however  un- 
expected. So  where  one  assaulted  a  woman  with 
intent  to  commit  rape,  and  she,  to  ransom  her  honor, 
without  demand  gave  him  money,  this  was  held  to  be 
robbery. '  And  there  is  no  doubt  thai  if  one  intended 
homicide  lie  is  guilty  of  murder,  though  he  intend  d 
to  kill  A.  and  ae!  ually  killed  B.2 

It  would  seem  that,  even  if  the  result  was  unex- 
pected, the  defendant  is  guilty,  if  his  intention  was 
to  commit  a  felony  or  other  serious  crime. 

§  29.  Accident.  Negligence.  —  Where  an  act  hap- 
pens through  mere  accident,  there  is  necessarily  an 
absence  of  criminal  intent;  and  a  mere  accident, 
therefore,  can  never  be  a  crime,  Bui  if  the  accident 
was  caused  by  a  breach  of  duty  on  the  pari  of  the 
used,  that  breach  of  duty  may  have  been  so  cul- 
pable as  properly  to  be  called  criminal.  Such  a 
thing  is  not  a  mere  nonfeasance ;  failure  to  doom's 
duty  may  often  be  regarded  as  a  deliberate  act,  and 
if  not  deliberate  it  may  at  least  be  treated  as  volun- 
tary, so  as  to  be  charged  as  committed  with  a  crimi- 
nal intent.  A  breach  of  duty  so  culpable  as  to  be 
either  deliberate  or  voluntary  is  called  criminal 
negligence;  and  is  a  sufficient  criminal  intent  to 
make  an  act   a   crime. 

§  30.  Negligence  when  Criminal.  —  It  has  been  said 
that,  in  order  to  give  rise  to  a  criminal  prosecution, 
the  duty  infringed  must  have  been  a  public  duly:  by 
which  is  meant  a  duty  imposed  by  law.  Thus,  it  is 
said,  the  duty  of  a  parent  to  support   his  child,  or  of  a 

1  Rex  v.  Blackhara,  2  East  P.  C.  711. 

-  Saunders's  Case,  -±  Plowd.  473;  Gore'.-  I  >.  81  a  j   W'ynn  v. 

State,  63  Miss.  MO. 


GENERAL  PRINCIPLES.  23 

watchman  at  a  railway  crossing,  who  was  required  to 
be  so  placed  by  statute,  would  be  of  such  a  nature  that 
Ihe  infringement  of  it  would  be  criminal ;  but  not  so 
the  negligence  of  a  watchman  at  a  railway  crossing 
who  was  placed  there,  not  in  consequence  of  a  stat- 
ute, but  by  private  liberality.1  This  position,  how- 
ever, appears  not  to  be  sound.  Any  duty  which  one 
undertakes  ought  so  to  be  performed  as  not  to  injure 
the  public;  and  culpable  negligence  in  the  perform- 
ance of  any  duty,  if  its  result  is  in  its  nature  crimi- 
nal, ought  to  be  punished.  Thus,  where  a  workman 
in  a  mine  is  charged  with  the  duty  of  putting  a  stage 
over  the  mouth  of  the  shaft,  and  the  omission  so  to 
do  causes  the  death  of  a  human  being,  he  is  gulity 
of  homicide.2  It  is  enough  if  the  person  injured 
had  reason  in  fact  to  rely  on  the  defendant's  care, 
whether  he  had  a  legal  right  so  to  rely  or  not.  So 
where  one  chooses  to  take  care  of  a  child  of  tender 
years,  though  bound  neither  by  law  nor  by  contract 
so  to  do,  he  is  guilty  of  crime  if  his  culpable  negli- 
gence cause  injury  to  the  child.3 

§  31.  What  Negligence  is  Culpable.  —  Not  every 
degree  of  negligence  is  sufficient  for  conviction  of 
crime.  It  must  be  culpable  negligence ;  such  as 
may  fairly  be  described  as  gross,  wanton,  or  wicked.4 
A  mere  error  of  judgment  in  a  matter  on  which  rea- 
sonable men  may  differ,  as  in  the  proper  sort  of 
medical  attendance  to  call  in  for  a  sick  person,5  or 

1  Regina  w.  Smith,  11  Cox  C.  C.  210. 

2  Regina  v.  Hughes,  7  Cox  C.  C.  301. 

3  Regina  v.  Nicholls,  13  Cox  C.  C.  75. 

4  Regina  v.  Nicholls,  13  Cox  C.  C.  75  ;  Regina  v.  Wagstaffe,  10  Cox 
C.  C.  530  ;  State  v.  Hardister,  38  Ark.  605. 

5  Regina  v.  Wagstaffe,  10  Cox  C.  C.  530. 


24  CRIMINAL   LAW. 

the  proper  remedies  to  apply,1  is  not  sufficient.  But 
carelessness  in  handling  a  weapon  that  is  dangerous 
to  life  is  criminal.2 

§32.  Specific  Intent.  —  When  a  specific  intent  is 
made  an  Lngredienl  in  crime,— as  where  one  is 
charged  with  an  assaull  with  intent  to  murder,  or 
to  commii  rape,  or  with  a  burglarious  entering  with 
intent  to  steal, —  the  offence  is  not  committed  unless 
the  accused  is  actuated  by  the  specific  intent  charged. 
The  intent  to  commit  another  crime,  though  of 
equal  grade  and  of  the  same  character  with  the  one 
charged,  will  not  constitute  the  offence  charged.3 

Such  specific  intent  cannot  he  presumed.  It  must 
be  proved  by  the  •government  as  one  of  the  necessary 
facts  of  the  case;  though  the  defendant's  arts  may  be 
shown  as  evidence  from  which  the  jury  can  find  that 
he  was  actuated  by  the  intent  charged. 

Instances  of  specific  intent  are  malice,  premedi- 
tation, intent  to  steal,  to  defraud,  etc.  In  all  c;ises 
where  an  act  is  not  criminal,  or  is  criminal  in  a  \>  ss 
degree,  unless  committed  in  a  certain  state  or  condi- 
tion of  mind,  express  proof  of  this  specific  condition 
of  mind  is  necessary,  and  proof  of  general  criminal 
intent  is  not  enough.4 

§  33.  Malice. —  Although  in  a  popular  sense  malice 
means  hatred,  hostility,  or  ill  will,  yet  in  a  Legal 
sense  it  has  a  much  broader  signification.  In  the 
Latter  sense  it  is  the  conscious  violation  of  th,  law  to 
the  'prejudice  of  another.      It  is  evil    intent  or  dis- 

1  State  v.  Hardister,  38  Ark.  605. 
-  State  i'.  Hardie,  47  Iowa,  <", it. 

3  Rex  v.  Boyce,  1  Moody  C.C.  29  ;  Note  to  United  States  v  Taintor, 
2  Green's  Cr.  1..  Rep.  244. 

4  Com.  v.  Walden,  3  Cush.  (Mass.)  558. 


GENERAL  PRINCIPLES.  25 

position,  whether  directed  against  one  individual  or 
operating  generally  against  all,  from  which  proceeds 
any  unlawful  and  injurious  act,  committed  without 
legal  justification.  Actions  proceeding  from  a  bad 
heart  actuated  by  an  unlawful  purpose,  or  done  in  a 
spirit  of  mischief,  regardless  of  social  duty  and  the 
rights  of  others,  are  deemed  by  the  law  to  be  mali- 
cious.1 The  voluntary  doing  an  unlawful  act  is  a 
sufficient  ground  upon  which  to  raise  the  presump- 
tion of  malice.  And  so  if  the  act  be  attended  by 
such  circumstances  as  are  the  ordinary  symptoms  of 
a  wicked  and  depraved  spirit,  the  law  will,  from 
these  circumstances,  imply  malice,  without  reference 
to  what  was  passing  in  the  mind  of  the  accused  at 
the  time  when  he  committed  the  act.2 

Envy  and  hatred  both  include  malice ;  but  the  lat- 
ter may  exist  without  either,  and  is  a  more  general 
form  of  wickedness.  As  to  the  proof  of  malice  and 
the  degree  thereof  necessary  to  constitute  specific 
crimes,  more  will  be  said  hereafter,  as  occasion  re- 
quires.3 Something  will  also  be  said  under  Homi- 
cide of  the  not  now  very  material  distinction  between 
express  and  implied  malice. 

§  34.  Constructive  Specific  Intent.  —  The  doctrine  of 
constructive  intent  is  clearly  inapplicable  in  a  case 
where  a  specific  intent  must  be  proved;  for  an  ex- 
press intent  is  necessary.  Thus,  where  a  statute 
punished  malicious  injury  to  property,  and  the  de- 
fendant threw  a  stone  intending  to  injure  a  human 
being,  and  in  fact  injured  property,  it  was  held  that 

1  Foster  Cr.  Law,  256  ;  Ferguson  v.  Kinnoull,  9  C.  &  F.  302,  321  ; 
Com.  v.  Webster,  5  Cush.  (Mass.)  305  ;  State  v.  Decklotts,  19  Iowa,  147. 

2  State  v.  Smith,  2  Strobh.  (S.  C.)  77. 

8  See  Arson,  Homicide,  and  Malicious  Mischief. 


26  CRIMINAL   LAW. 

the  specific  malice  required  by  the  statute  was  not 
present;1  and  where  a  statute  punished  the  mali- 
cious destruction  of  a  vessel,  and  the  defendanl  while 
stealing  rum  in  a  vessel  accidentally  sel  fire  to  it 
and  destroyed  it,  he  was  held  not  guilty  under  the 
statute.2  But  the  specific  intenl  may  be  present, 
though  the  result  is  not  precisely  what  was  intended. 
Thus  one  may  be  convicted  under  a  statute  for  mali- 
ciously injuring  a  person,  though  he  maliciously 
struck  at  A.  and  in  fact  hit  B.  The  specific  intent 
here  existed.3 

CRIMINAL   CAPACITY. 

§  35.  Who  may  become  Criminal. —  No  person  can  be 
guilty  of  a  crime,  unless  he  has  both  mental  and 
physical  capacity. 

£  36.  Infants,  therefore,  are  not  amenable  to  the 
criminal  law  until  they  have  reached  that  degree  of 
understanding  which  enables  them  to  appreciate  the 
quality  of  the  act.  The  law  fixes  this  limit  arbi- 
trarily, for  the  sake  of  convenience,  at  the  age  of 
seven  years,  and  will  not  listen  to  evidence  that  a 
person  below  this  age  is  capable  of  understanding  the 
quality  of  his  act.  Between  the  ages  of  seven  and 
fourteen,  with  some  exceptions,  the  presumption  is 
thai  the  infant   lacks  discretion  or  criminal  capacity, 

and  the  burden  of  proof  that  he  has  such  capacity 
is  upon  the  prosecutor.4  If  there  he  no  evidence 
upon    this    point,    the    prosecution    fails.      There   arc 

1   ].'■  gina  v  Pemblil 12  Cox  C.  C  607. 

-  Regina  v.  Faulkner,  13  Cox  ('.  ('.  550. 

3  Regina  v.  Latimi  r.  i:  Q.  B.  I  >.  359  ;  8.  c    16  Cox  C  C.  70. 

4  Com.  v.  Mead,  10  Allen  (Mass.)  398;  Angelo  v.  People,  96  HI.  209 , 
State  v.  Doherty,  2  Overt.  (Tenn.)  80. 


GENERAL  PRINCIPLES.  27 

two  generally  admitted  exceptions  to  this  rule,  —  a 
female  under  the  age  of  ten  years  being  conclusively 
presumed  to  be  incapable  of  consenting  to  sexual  in- 
tercourse, and  a  male  under  fourteen  being  conclu- 
sively presumed  to  be  incapable  of  committing  rape. 1 
In  Ohio  this  presumption  is  held  to  be  disputable;2 
and  in  Massachusetts  it  has  been  held  by  a  divided 
court  that  a  boy  under  the  age  of  fourteen  may  be 
guilty  of  an  assault  with  intent  to  commit  rape,  on 
the  theory  that  penetration  only  is  necessary  to  the 
consummation  of  the  crime.3  In  California,  by 
statute,  all  infants  under  fourteen  are  incapable.4 

After  the  age  of  fourteen,  the  presumption  is  that 
the  infant  has  criminal  capacity,  and  the  presump- 
tion is  sufficient,  if  not  met  by  counter  proof,  to  war- 
rant the  jury  in  finding  the  fact.  But  the  defendant 
may  prove  his  incapacity.5  An  exception  to  this 
last  rule,  in  the  nature  of  physical  incapacity,  is 
where  an  infant  over  fourteen  fails  in  some  public 
duty,  as  to  repair  a  highway.  In  this  case  he  is 
held  incapable,  as  he  has  not  command  of  his  for- 
tune till  he  arrives  at  his  majority.6 

*  Regina  v.  Philips,  8  C  &  P.  7.36  ;  Regina  v.  Jordan,  9  C.  &  P.  118. 
Except,  indeed,  by  being  present  aiding  and  abetting.  Law  v.  Cum., 
75  Va.  885. 

2  Williams  v.  State,  14  Ohio,  222. 

3  Com.  v.  Green,  2  Pick.  (Mass.)  380.  But  see  also,  upon  this  point, 
Com.  v.  Lanigan,  2  Boston  Law  Reporter,  49,  Thatcher,  J. ;  People  v. 
Randolph,  2  Parker  C.  R.  (N.  Y.)  174  ;  State  v.  Sam,  Winston  (N.  C.) 
300  ;  Rex  v.  Eldershaw,  3  C.  &  P.  396. 

*  Bev.  Stat.  1852,  c   99. 

5  Rex  v.  Owen,  4  C.  &  P.  236  ;  Marsh  v.  Loader,  14  C.  B.  n.  s  535  ; 
Rex  v.  York,  and  note,  1  Lead.  Cr.  Cas.  71  ;  Regina  v.  Smith,  1  Cox 
C.  C.  260;  People  v.  Davis,  1  Wheeler  (N.Y.)  C.  C.  230 ;  Com.  v.  Mead, 
10  Allen  (Mass.)  398;  State  v.  Learnard,  41  Vt.  585. 

6  1  Hale  P.  C.  20. 


■2$  CRIMINAL   LAW. 

§  oT.  Coercion.  Fraud.  —  Married  women  are  pre- 
sumed  to  be  s  i  tar  under  the  control  and  coercion  of 
their  husbands,  thai  in  many  cases  they  are  not  held 
responsible  for  crimes  committed  in  their  presence.1 
But  this  presumption  is  only  prima  facie,  and  may 
be  rebutted  by  evidence  that  the  woman  was  not 
coerced,  but  acted  voluntarily,  according  to  her  own 
pleasure.2  There  are  exceptions  to  this  incapacity 
of  married  women,  upon  which,  however,  the  au- 
thorities arc  not  agreed.  She  seems  to  be  responsi- 
ble  lor  treason  and  murder,  by  the  general  consent 
of  the  authorities,  and  perhaps  for  robbery,  perjury, 
and  forcible  and  violent  misdemeanors  generally.8 
Where  the  husband  is  not  present,  there  is  no  pre- 
sumption of  coercion.4  But  there  are  cases  of  a  non- 
consenting  will,  as  where  one  is  compelled,  by  fear 
of  being  put  to  death,  to  join  a  party  of  rebels,  or 
is  entrapped  into  becoming  the  innocent  agent  of 
another,  whereby  a  person  unwittingly  or  unwil- 
lingly, rather  than  through  incapacity,  becomes  the 
instrument  of  crime  wielded  by  the  hand  of  another. 
The  will  is  constrained  by  fear  or  deceived  by  fraud 
into  what  is  only  an  apparent  consent."'  The  fact 
that  the  defendant  was  acting  as  the  mere  agent  or 
servant  of  another  in  the  commission  of  a  crime  will 
not  excuse  him.6 

1  1  Hale  P.  C.  44     Com  ».  Eagan,  103  Mass  71. 

2  Reginaw.  Pollard,  8  C  &P.553;  State i>.  <  leaves, 59 Me.  298 ;  Com. 
r».  Hurler,  1  Allen  (Mass  |  i  .  Rex  v,  Stapleton,  Jebb  C  C.  '.'••(;  Miller 

.  25  Wis.  384 ;  2  Green's  Cr.  Law  Rep  286,  note. 
See  the  authorities  collected  in  note  to  Com  v   \>al,  l  Lead.  Cr. 
Cas  -i  .  3  Green!   Ev.  §7.  15th  ed. 
1  ('..in   v.  Tryon,  '.>'.'  Mass  442. 

6  Foster  Cr    Law,   14;   1  Hale  1'   C.   50;  Steph    Dig.  Cr.  Law,  art. 
31  ;  Rex  v  Crutchley,  5C  &  I'  133. 
0  Com  v   Badley,  11  Met   (Mass.)  66. 


GENERAL  PRINCIPLES.  29 

§  38.  Corporations  being  impersonal,  and  merely 
legal  entities,  without  souls,  as  it  has  been  said, 
though  incapable  of  committing  those  crimes  which 
can  only  proceed  from  a  corrupt  mind,  may  never- 
theless be  guilty  of  a  violation  not  only  of  statutory 
but  common  law  obligations,  both  by  omission,  and, 
by  the  greater  weight  of  authority,  by  commission. 
They  cannot  commit  an  assault,  though  they  may  be 
held  civilly  responsible  for  a  tort  committed  by  their 
agent.1  Nor  can  they  commit  any  crime  involving  a 
criminal  intent.  But  they  may  create  a  nuisance, 
through  the  acts  of  their  agents,  and  by  the  very 
mode  of  their  operations;  in  which  case  they  are 
subject  to  indictment  and  punishment  by  fine,  or 
even  the  abrogation  of  their  charter, —  the  only  pun- 
ishments applicable  to  a  corporation;  the  latter  a 
sort  of  capital  punishment,  inflicted  when  the  cor- 
poration has  forfeited  the  right  to  live.2 

A  corporation  is  also  indictable  for  negligence  in 
the  non-performance  of  the  duties  imposed  upon  it 
by  its  charter,  or  otherwise  by  law.3  It  has  been 
held  in  some  cases  that  a  corporation  is  not  indict- 
able for  a  misfeasance,4  —  in  opposition,  however,  to 
the  great  weight  of  authority.5 

§  39.  Insane  Persons. — Insanity,  under  which  the 
law  includes  all  forms  of  mental  disturbance,  whether 

1  Angell  &  Ames  on  Corporations,  §§  311,  387. 

2  Regina  v.  Railway  Co.,  9  Q  B.  315  ;  Delaware  Canal  Co.  v.  Com., 
60  Pa.  367  ;  1  Bish.  Cr.  Law,  §§  420,  422. 

3  Regina  v.  Railway  Co.,  3  Q.  B.  223 ;  People  v.  Albany,  1 1  Wend. 
(N.  Y.)  539. 

4  State  v.  Great  Works,  &c,  20  Me.  41  ;  Com.  v.  Swift  Run,  &c, 
2  Va.  Cas.  362. 

5  See  Com.  v.  Proprietors,  &c,  2  Gray  (Mass.)  339;  1  Bish.  Cr. 
Law,  §§  420,  422. 


30  CRIMINAL  LAW. 

lunacy,  idiocy,  dementia,  monomania,  or  however 
otherwise  its  special  phenomena  may  be  denomi- 
nated, is  another  ground  upon  which  persons  are 
held  incapable  of  committing  a  crime.  Insanity  is 
mental  unsoundness.  It  exists  in  different  forms 
and  degrees.  A  higher  degree  of  insanity  is  requi- 
site to  protect  a  person  from  the  consequences  of  a 
criminal  violation  of  law,  than  to  relieve  him  from 
the  obligation  of  a  con!  ract. 

§  tO.  Test  cf  Insanity  Knowledge  of  Right  and 
Wrong — Various  tests  have  been  proposed  by  the 
courts  for  determining  the  fact  of  insanity.  The 
one  which  most  widely  prevails  is  thai  laid  down  by 
the  judges  of  England  in  M'Naghten's  Case,1  to  wit: 
if  the  off.  rider  has  sufficient  m<  ntal  capacity  to  know 
that  the  act  which  he  is  about  to  commit  is  wrong 
and  deserves  punishment,  and  to  apply  that  knowl- 
edge at  the  time  when  the  act  is  committed,  he  is 
not  in  the  eye  of  the  criminal  law  insane,  but  is  rc- 
sponsible.  All  persons  whose  minds  are  diseased  or 
impaired  to  the  extent  named,  and  all  whose  minds 
are  so  weak  —  idiots,  lunatics,  and  the  like-  —  that 
they  have  not  the  sufficiency  of  understanding  and 
capacity  before  stated,  come  under  the  protection  of 
irresponsibility.  And  in  many  jurisdictions  this  is 
the  only  test  for  insanity.3 

1    10  (1    &  F.  200. 

-'  State  v.  Richards,  39  Conn.  591. 

»  Reginar.  Haynes,]  I'  &  V  666;  State  v.  Shippey,  10  Minn.  223; 
State  v.  Brandon,  8Jones(N.C.)  463;  State  v  1  ike,  49  \\  II  399;  Black- 
burn v.  State,  23  Ohio  St,  146;  United  States  v  McGlue,  1  Cnrtis (TJ  S. 
C.  Ct.)8;  State  v  tinting,  21  Mo.  464;  Spann  r-.  State.  47  Ga 
Brown  ,-.  Com.,  7s  Pa.  122  :  State  i:  Johnson,  40  <  'onn.  Kit; ,  Flanagan 
v.  People,  .">2  N   V.  4G7. 


GENERAL  PRINCIPLES.  31 

§  41.  Irresistible  Impulse. —  Insanity  also  sometimes 
appears  in  the  courts  in  the  form  of  what  is  called 
an  irresistible  impulse  to  commit  crime.  And  though, 
as  Ave  have  seen,  many  jurisdictions  do  not  recog- 
nize this  as  a  form  of  insanity  which  will  excuse 
from  crime,  yet  in  other  jurisdictions  it  is  recog- 
nized by  the  courts  if  it  is  the  product  of  disease: 
since  an  act  produced  by  diseased  mental  action  is 
not  a  crime.1  But  an  irresistible  impulse  is  not  a 
defence,  unless  it  produced  the  act  of  killing.  Yield- 
ing to  an  insane  impulse  which  could  have  been 
successfully  resisted  is  criminal.2  The  man  who 
has  a  mania  for  committing  rape,  but  will  not  do  it 
under  such  circumstances  that  there  is  obvious  dan- 
ger of  detection,3  and  the  man  who  has  a  mania  for 
torturing  and  killing  children,  but  always  under 
such  circumstances  as  a  sane  man  would  be  likely 
to  adopt,4  in  order  to  avoid  detection,  are  not  en- 
titled to  its  shelter.  This  plea  is  to  be  received 
only  upon  the  most  careful  scrutiny.5 

§  42.  Emotional  Insanity,  which  is  a  newly  dis- 
covered, or  rather  invented,  phase  of  irresistible  im- 
pulse, and  is  nothing  but  the  fury  of  sudden  passion 
driving  a  person,  otherwise  sane,  into  the  commis- 

1  Com.  v.  Rogers,  7  Met.  (Mass.)  500;  State  v.  Felter,  25  Iowa, 
67;  State  v.  Windsor,  5  Harr.  (Del.)  512 ;  Smith  r.  Com.,  1  Duv. 
(Ky.)  22-4  ;  Dejarnette  v.  Com  ,  75  Va.  867  ;  Parsons  v.  State,  81 
Ala.  577. 

2  State  v.  Jones,  50  N.  H.  369  ;  State  v.  Felter,  25  Iowa.  67. 

3  See  testimony  of  Blackburn,  J.,  before  the  Parliamentary  Com- 
mittee on  Homicide,  cited  in  Wharton  on  Homicide,  §  582,  note. 

4  Com.  v.  Pomeroy,  117  Mass.  143. 

5  Com.  v.  Mosler,  4  E-arr  (Pa.)  264;  United  States  v.  Hewson, 
7  Boston  Law  Reptr.  361  (U.  S.  C.  Ct.),  Story,  J.;  Scott  v.  Com., 
4  Met.  (Ky.)  227;  Hopps  v.  People,  31  111.  385. 


32  CRIMINAL  LAW. 

sion  of  crime,  is  utterly  repudiated  by  the  courts  as 
a  ground  of  irresponsibility.3 

§  43.  Moral  Insanity,-  or  thai  obliquity  which  leads 
men  to  commit  crime  from  distorted  notions  of  what 
is  right  and  what  is  wrong,  and  impels  them  gener- 
ally and  habitually  in  a  criminal  direction,  as  dis- 
tinguished from  mental  insanity,  though  appearing 
to  have  the  sanction  of  the  medical  faculty  as  a  doc- 
trine founded  in  reason  and  the  nature  of  things,  is 
scouted  by  many  of  the  most  respectable  courts  as 
unfounded  in  law;8  and  although  accepted  to  a  lim- 
ited extent  by  others,  it  is  treated  even  by  them  as 
a  doctrine  dangerous  in  all  its  relations,  and  to  be 
received  only  in  the  clearest  cases.4  It  may  also  be 
observed,  that  moral  insanity  is  sometimes  con- 
founded with,  and  sometimes  distinguished  from. 
irresistible  impulse.  In  Pennsylvania,  lor  instance. 
very  recently,  the  existence  of  such  a  kind  of  insan- 
ity seems  to  have  been  recognized;  but  it  was  said 
to  hear  a  striking  resemblance  to  vice,  and  ought 
never  to  be  admitted  as  a  defence  without  proof  that 
the   inclination  to  kill    is   irresistible,    and   that  it 

1  State  v.  Johnson,  40  Conn.  136;  Willis  v.  People,  ">  Parker  C.  C. 
(N.Y.)621;  People  v.  Bell,  49  Cal.  485 ;  Parsons  »  State,  81  Ala.  577. 
See  ■■']<<>  a  very  vigorous  article  upon  the  subject,  7  Alb.  Law  Jour.  i>73. 
Upon  tin'  general  subject  <>f  insanity  as  a  defence,  see  Com.  v.  Roj 

1  Lead.  <  !r.  <  las  94  and  uote. 

2  The  French  call  it  "moral  Belf-perversion." 

"  Humphreys  v.  State,  15  Ga.  190;  Farrer  v.  State,  2  Ohio  St.  54; 
State  v.  Brandon,  8  Jones  (N.  C.)  463 ;  Choice  v.  State,  31  Ga.  424; 
People  v  McDonell,  47  Cal.  134;  United  States  v.  1 1. lines,  l  Clifford 
(TJ.  S.  C.  Ct.)  98;  State  v.  Lawrence,  57  Me.  574;  and  cases  before 
cited  "ii  the  general  topic,  ante,  §39.    See  also  Wharton  on  Homicide, 

4  See  Wharton  on  Homicide,  §  583  et  seq, 


GENERAL  PEINCIPLES.  33 

does  not  proceed  from  anger  or  other  evil  passion.  1 
Hence  many  cases  appear  to  be  in  conflict  which  in 
fact  are  not  irreconcilable.  The  absence  of  clear 
definitions  is  a  serious  embarrassment  in  the  discus- 
sion of  this  subject. 

§  44.  Insanity  at  Time  of  Trial.  —  An  offender  can- 
not be  tried,  sentenced,  or  punished  for  crime  while- 
insane.  The  test  of  insanity  is,  however,  different  in 
this  case  from  the  test  in  the  ordinary  case.  Insan- 
ity which  prevents  a  trial  is  not  inability  to  distin- 
guish right  from  wrong,  but  mental  incapacity  to 
make  a  rational  defence,  or  to  understand  the  mean- 
ing of  punishment.2 

§  45.  Proof  of  Insanity.  —  As  a  question  of  evi- 
dence, the  burden  of  proof  of  sanity  is  upon  the 
government  in  all  cases.  The  act  must  not  only  be 
proved,  but  it  must  also  be  proved  that  it  is  the  vol- 
untary act  of  an  intelligent  person.  Where  the  will 
does  not  co-operate,  there  is  no  intent.  But  as 
sanity  is  the  normal  state  of  the  human  mind,  the 
law  presumes  every  one  sane  till  the  contrary  is 
shown;  and  this  presumption,  in  the  absence  of 
evidence  to  the  contrary,  is  sufficient  to  sustain  this 
burden  of  proof.  If,  however,  the  defendant  can,  by 
the  introduction  of  evidence,  raise  a  reasonable 
doubt  upon  the  question  of  sanity,  he  is  to  be  ac- 
quitted. This  is  the  better  rule,  supported  by  many 
authorities.3 

1  Com.  v.  Sayre  (Pa.),  5  Weekly  Notes  of  Cas.  424. 

2  Freeman  v.  People,  4  Denio  (N.  Y.)  9. 

3  Com.  v.  Pomeroy,  117  Mass.  143  ;  People  v.  Garbutt,  17  Mich.  9 ; 
State  v.  Crawford,  11  Kan.  32  :  8.  c.  32  Am.  Law  Reg.  n.  s.  21,  and 
note;   Polk  v.  State,  19  Ind.  170;  State  v.  Marler,  2  Ala.  43;  Dove  v. 

3 


34  CRIMINAL  LAW. 

In  most  of  the  States,  however,  it  is  held  that,  if 
tin1  prisoner  sets  up  insanity  in  defence,  he  must 
prove  it  by  a  preponderance  of  evidence,  or  h  ia 
of  no  avail.  It  is  not  enough  for  him  to  raise  a 
reasonable  doubl  on  the  point.1  In  New  York,  the 
authorities  seem   to  be  conflicting.2 

In  New  Jersey,  it  seems  to  be  the  law  that  the 
prisoner  must  prove  the  defence  of  insanity  beyond  a 
reasonable  doubt.3 

§  46.  Voluntary  Drunkenness,  as  a  ru le,  is  not  regarded 
by  the  law  as  an  excuse  for  the  commission  of  a 
crime  while  under  its  influence,  since  one  who  under 
such  circumstances  perpetrates  a  crime  is  deemed  to 
have  procured,  or  at  least  consented  to,  that  condi- 
tion of  things  by  which  the  commission  of  the  crime 
became  more  probable.  Although  intoxication,  ac- 
cording to  its  degree,  may  cloud  or  eventually  ob- 
scure the  reason  for  the  time  being,  and  excite  the 
passions  of  man,  if  it  be  the  result  of  voluntary  and 
temporary  indulgence,  it  cannot  be  regarded  either 
in  excuse,  justification,  or  extenuation  of  a  criminal 
act.      If  privately  indulged  in,  it  may  not  be  a  crime 

3  Heisk.  (Trim.)  .348  ;    State  v.  Jones.  50  N.  II.  .360:   Wrighl  v. 
I  Neb  407  ;  Chase  v.  People,  40  111.  352. 

1  Lynch  v.  Com.,  77  Pa.  205;    Kelley  v.  State,  .3  S.  &  M.  (Miss.) 
518;  State  v.  Felter,  .32  [owa,  49  ;    People  v.  Best.  39  Cal.  690;  St 
v.  Lynch,  4  L.  &  Eq.  Reptr.  653  ;  Boswell  v.  I  om.,  20  Gratt.  (Va 
Stale  r.  LawTence,  57    Me.  .">74  ;   State  v.  Coleman,  27  La.  Ann.  691  ; 
Boufanti  v.  State,  2  Minn.  123;  State  r.  Fluting,  21  Mo.  464  :  Sta 
Potts,  100  X.  C.  457;  State  v.  Strauder,  11  W.  Va.  745,  823  :  Mate  v. 
Bnndy,  24  S.  C.  439;  Casal  v.  Mate.  40  Ark.  511  ;  People  v.  Walter,  I 
Ida  .386. 

-  Wagner  v.  People,  4  Abb.  Aj>p.  (X.  V.)  :«k>  ■  IVcij,]e  r.  M.-Cann, 
16  X.  Y.  58  I     Flannagan  v  People,  52  N.  Y.  4i;: 

»  State  v.  Spenser,  1  Zab.  (21  N.J.  L.)  202. 


GENERAL  PRINCIPLES.  35 

in  itself.  It  is  nevertheless  so  far  wrongful  as  to 
impart  its  tortious  character  to  the  act  which  grows 
out  of  it.1  It  was  said  by  Coke,2  and  has  been  some- 
times repeated  by  text-writers  since,  that  the  fact  of 
intoxication  adds  aggravation  to  the  crime  com- 
mitted under  its  influence;  but  this  seems  not  to 
have  the  authority  of  any  well  adjudged  case,  nor  to 
be  well  founded  in  reason.  It  cannot,  for  instance, 
aggravate  an  offence,  which  in  law  is  only  man- 
slaughter if  committed  by  a  sober  man,  into  murder 
if  done  by  a  drunken  one ;  nor  generally  lift  a  minor 
offence  into  the  category  of  a  higher  grade.  If  in- 
toxication be  a  crime,  it  may  be  punished  distinct- 
ively ;  but  the  punishment  of  intoxication  should 
not  be  added  to  that  of  the  crime  committed  under 
its  influence.  If  this  were  permissible,  greater  re- 
sponsibility would  attach  to  the  intoxicated  than  to 
the  sober  man,  in  respect  of  the  particular  offence.3 
§  47.  Intoxication.  Specific  Intent. — When,  however, 
in  the  course  of  a  trial,  a  question  arises  as  to 
the  particular  state  of  the  mind  of  the  accused  at 
the  time  when  he  committed  a  crime, — as,  for  in- 
stance, whether  he  entertained  a  specific  intent,  or 
had  express  malice,  or  was  acting  with  deliberation, 
—  the  fact  of  intoxication  becomes  an  admissible 
element  to  aid  in  its  determination;  not  as  an  ex- 
cuse for  the  crime,  but  as  a  means  of  determining 
its  degree.     If  a  man  be  so  drunk  as  not  to  know 


1  Beverley's  Case,  4  Co.  123  b,  125  a ;  Com.  v.  Hawkins,  3  Gray 
(Mass.)  463  ;  People  v.  Garbutt,  17  Mich.  9  ;  Rafferty  v.  People,  66  111. 
118  ;  People  v.  Lewis,  36  Cal.  531  ;  Flanigan  v.  People,  86  N.  Y.  554. 

2  Coke  Litt.  247. 

8  Mclntyre  v.  People,  38  111.  514. 


36  CRIMINAL   LAW. 

what  he  is  doing,  he  is  incapable  of  forming  any 
specific   intent.1 

Tims  proof  of  drunkenness  may  reduce  murder 
from  the  first  to  the  second  degree;2  or  may  show 
such  absence  of  intent  as  to  justify  acquittal  on  a 
charge  of  attempt  to  kill,3  burglary,4  forgery,5  lar- 
ci  ay,6  assault  with  intent  to  kill,7  or  other  crime 
involving  a  specific  intent. 

But  the  presumption  that  a  man  intends  the  natu- 
ral and  probable  consequences  of  his  act  is  as  appli- 
cable to  the  drunken  as  to  the  sober  man ;  and  the 
capacity  to  form  the  intent  to  shoot  with  a  deadly 
weapon  implies  the  capacity  to  form  the  intent  to 
kill.8 

§48.  Delirium  Tremens.  Mental  Disease. —  Delirium 
tremens  is  rather  a  result  of  intoxication  than  in- 
toxication itself,  and  is  regarded  by  the  law  as  a 
disease  of  the  mind, — -a  temporary  insanity.  This, 
like  any  other  mental  disease  induced  by  long  and 
excessive  indulgence,  which  impairs  the  mind  or 
controls  its  operations  to  such  an  extent  that  the  per- 
son afflicted  cannot  distinguish  right  from  wrong, 
and  has  not  the  capacity  to  know  what  he  does,  may 

1  Jones  '•.  Com.,  75  Pa.  2  :  ;  Roberts  >•.  People,  19  Midi.  401  : 
State  v.  Johnson,  40  Conn.  136;  Malone  v.  State,  49  Ga.  -i  1 « » ;  Mclntyre 
v.  People,  38  [11.514;  State  v.  Garvey,  1 1  Minn.  154;  People  v.  Robin- 
son, i'  Park.  C.  C  (N.  V.)  235;  Schlenchet  v.  State  (Neb.),  8  Reptr. 
207  ;  State  v.  Bell,  12'.)  Iowa,  310. 

-  Bopt  v.  People,  104  Q.  S.  631. 
Regina  v.  Doody,  6  Cox  C.  C.  463. 

i  stair  v.  Bell,  29  Iowa.  316. 

b  People  v.  Blake,  65  Cal.  275. 

8   People  r.  Walker,  38  Mich.  156. 

7  Roberts  v.  People,  19  Mich.  401. 

8  Marshall  v.  State,  59  Ga.  154. 


GENERAL  PRINCIPLES.  37 

relieve  from  responsibility.  Though  one  may  volun- 
tarily and  of  purpose  become  intoxicated,  and  so  be 
held  responsible  for  the  natural  consequences  of  the 
condition  which  he  has  sought,  he  does  not  intend  to 
become  delirious  or  demented.1 

§  49.  Involuntary  Intoxication,  or  that  which  is  in-* 
duced  by  the  fraud  or  mistake  of  another, —  as  when 
one  is  deceived  into  drinking  an  intoxicating  bever- 
age against  his  will,  or  by  the  advice  of  his  physician 
drinks  for  another  purpose, —  constitutes  a  valid  ex- 
cuse for  crime  committed  while  under  its  influence. 
So,  doubtless,  would  one  be  held  excusable  who, 
without  negligence,  and  with  the  intent  to  benefit 
his  health  or  alleviate  pain,  and  not  merely  to  gratify 
his  appetite,  had,  through  misjudgment  or  mistake, 
drunk  more  than  he  intended,  or  than  was  necessary, 
to  the  extent  of  intoxication.  In  the  absence  of  in- 
tent either  to  commit  crime  or  to  become  intoxicated, 
the  essential  criterion  of  crime  is  wanting.2 

But  one  cannot  plead  over-susceptibility  as  an  ex- 
cuse for  the  excessive  indulgence  of  his  appetite. 
And  that  degree  of  indulgence  is  in  him  excessive 
which  produces  intoxication,  though  the  same  amount 
of  indulgence  would  not  ordinarily  produce  intoxica- 
tion in  others.  Voluntary  indulgence  carries  with 
it  responsibility  for  the  consequences.3 

§  50.  Ignorance  or  Mistake  of  Fact.  —  Ia-norance  or 
mistake    of   fact   may    prevent   responsibility  for   a 

1  Macoimehey  v.  State,  5  Ohio  St.  77  ;  United  States  v.  Drew,  5 
Mason  (U.  S.  C.  Ct.)  28;  People  v.  Williams,  43  Cal.  344;  State  v. 
McGonigal,  5  Harr  (Del.)  510  ;  Cornwell  v.  State,  1  M.  &  Y.  (Tenn.) 
147. 

2  1  Hale  P.  C.  32  ;  Pearson's  Case,  2  Lew.  C.  C.  144. 

3  Humphreys  v.  State,  45  Ga.  190. 


38  CRIMINAL   LAW. 

common  law  crime.  If  the  offender  acted  under  a 
bona  fide  belief  in  a  state  of  facts  different  from 
what  actually  existed,  he  is  to  be  held  responsible 
only  for  the  act  he  supposed  he  was  doing;  mo 
thai  would  have  been  criminal,  he  is  not  guilty  of  a 
crime.  Thus  where  one  was  aroused  at  night  by  a 
cry  of  "Thieves!"  and  killed  a  servant,  honestly  and 
reasonably  believing  him  to  be  a  burglar,  he  was  held 
not  guilty  of  homicide. ' 

§51.  Ignorance  of  Law. —  Knowledge  of  the  crim- 
inal law  on  the  part  of  every  person  eapax  doll 
within  its  jurisdict  ion  is  conclusively  presumed,  upon 
grounds  essential  to  the  maintenance  of  public  order. 
This  fact,  therefore,  is  always  taken  for  granted. 
Ignorance  of  the  law  excuses  no  one.  And  this 
principle  is  so  absolute  and  universal,  that  a  for- 
eigner recently  arrived,  and  in  point  of  fad  not 
cognizant  of  the  law,  is  affected  by  it.2  It  rests 
upon  considerations  of  public  policy,  the  child'  of 
which  is  that  the  efficient  administration  of  justice 
would  become  impracticable,  were  the  government 
obliged  to   prove  in   every   case  that  the  defendant 

actually  had  knowledge  of  the  law. 

§52.  Same  Subject.  Specific  Intent. — There  are 
cases,  however,  when  there  is  doubt  as  to  the  inter- 
pretation of  the  law.  in  which  it  has  been  held  that 
acting  under  a  mistaken  opinion  as  to  its  pur] 
may  lie  an  excuse.  Thus,  it  is  said  thai  when  the 
act  done  is  malum  in  se,  or  when  the  law  which  has 
been  infringed  is  settled  and  plain,  the  maxim, 
Ignorantia  legis  neminem  excusat,  will  be  applied  in 

1  Levi       I  1  Rale  !'.  C.  42. 

-  ■'  !•  rrom  t.  1  E.  &  15.  1 ;  Rex  v.  Esop,  7  C.  £  I'.  456. 


GENEKAL  PRINCIPLES.  39 

its  rigor;  but  when  the  law  is  not  settled,  or  is 
obscure,  and  when  the  guilty  intention,  being  a 
necessary  constituent  of  the  particular  offence,  is 
dependent  on  a  knowledge  of  the  law,  or  of  its  ex- 
istence,—  as  where  one  takes  property  believed  to  be 
his  own  under  a  claim  of  right,  in  ignorance  of  the 
existence  of  a  law  which  vests  the  property  in  an- 
other,1 or  takes  illegal  fees,2  or  illegally  votes,3 
under  a  mistake  as  to  the  meaning  of  the  law, —  this 
rule,  if  enforced,  would  be  misapplied.  Whenever, 
therefore,  a  special  mental  condition  constitutes  a 
part  of  the  offence  charged,  and  such  condition  de- 
pends on  the  fact  whether  the  party  charged  had  cer- 
tain knowledge  with  respect  to  matters  of  law,  the 
fact  of  the  existence  of  such  knowledge  is  open  to 
inquiry. 

Thus,  in  a  prosecution  for  maliciously  setting  fire 
to  furze,  proof  of  a  mistaken  belief  in  the  offender's 
right  to  burn  the  furze  is  admissible,  since  it  dis- 
proves malice.4 

INTENT    IN   STATUTORY    CRIMES. 

§  53.  Statute  may  ignore  Intent — Doubtless,  in  the 
earlier  history  of  the  common  law,  only  such  acts 
were  deemed  criminal  as  had  in  them  the  vicious 
element  of  an  unlawful  intent, —  acts  which  were 
mala  in  se,  and  indicated  some  degree  of  moral  ob- 
liquity.    But  this  quality  has  long  since  ceased  to 

1  Rex  v.  Hall.  3  C.  &  P.  409  ;  Regina  v.  Reed,  C.  &  M.  306 ;  Com.  p. 
Stebbins,  8  Gray  (Mass.)  492. 

2  Cutter  v.  State,  36  N.  J.  125  ;  People  v  Whalley,  6  Cow.  (N.  Y.) 
661  ;  Halstead  i>.  State,  41  N  J.  L.  552. 

3  Com.  v.  Bradford,  9  Met.  (Mass.)  268. 
*  Regina  v.  Towse,  14  Cox  C.  C.  327. 


40  CRIMINAL  LAW. 

be  essential,  and  at  the  presenl  day  mala  prohibita  — 
acts  made  criminal  by  statute,  many  of  them  unobjec- 
tionable in  a  moral  aspect,  excepl  so  far  as  doing  an 
aid  prohibited  by  law  may  be  deemed  immoral  — 
constitute  no  inconsiderable  portion  of  the  category 
of  crimes. 

To  illustrate.  The  statute  prohibits  the  sale  of 
adulterated  milk.  A  person  who  sells  adulterated 
milk  withoul  knowing  ii  to  be  adulterated,  or  even 
honestly  believing  it  to  be  pure,  is  nevertheless 
guilty  of  a  crime.  There  are  many  arts  which  the 
law,  looking  to  the  protection  of  the  community, 
seeks  to  prevenl ;  making  it  perilous,  by  making  it 
criminally  punishable,  to  do  them.  As  every  one  is 
presumed  to  know  the  law,  every  one  knows  that  the 
sal.'  of  adulterated  milk  is  prohibited.  No  one  is 
bound  to  sell  milk;  but  if  lie  do,  he  is  bound  to 
know  whether  it  is  adulterated  or  not;  and  if  be 
intentionally  sells  milk  withoul  having  correctly 
determined  beforehand,  as  it  is  in  bis  power  to  do, 
whether  it  is  or  is  not  of  the  character  prohibited, 
he  is  so  far  at  fault,  and  to  that  extent  guilty  of  a 
neglect  of  legal  duty.1  For  the  same  reason,  the 
sale  of  a  single  glass  of  intoxicating  liquor,  even  for 
a  praiseworthy  purpose,  may  or  may  not  be  criminal 
in  different  jurisdictions,  and  at  different  times  in 
the  same  jurisdiction,  according  as  the  legislature, 

in  the  interestof  the  public  good,  may  provide.  'I'll  ■ 
hardship  of  requiring  that  a  person  shall  know  a  fact 
is  no  greater  than  to  require  thai  he  shall   know  the 

law.       Ill    Other    words,    where   the    statute   (dearly    so 

intends,    ignorance  of  a   fact    is  no  mere  an  excuse 

'  Cm,,,,  ,-.  Waite,  11  All   (Mass.)  264. 


GENERAL  PRINCIPLES.  41 

than  ignorance  of  law.  The  necessity  of  a  criminal 
intent  may  be  done  away  by  the  legislature,  and  the 
criminal  act  be  made  the  sole  element  of  a  crime.1 

§  54.  Necessity  of  Intent  a  Question  of  Interpretation. 
—  The  question  becomes  therefore  one  of  interpreta- 
tion of  the  criminal  statute ;  and  to  aid  us  m  this 
work  we  have  the  principle  that  a  statute,  other 
things  being  equal,  is  to  be  interpreted  as  a  modifi- 
cation, not  as  a  repeal,  of  the  common  law.  On  the 
other  hand,  however,  the  legislature  has  an  undoubted 
right  to  make  the  commissi  on  of  any  act,  even  with- 
out criminal  intent,  a  crime.  Several  theories  have 
been  put  forward  as  to  the  proper  interpretation  of 
criminal  statutes.  According  to  one  theory,  the 
commission  of  any  act  forbidden  by  statute  would  be 
a  crime,  though  it  was  done  without  criminal  intent, 
unless  the  statute  required  such  intent.2  This 
theory  is,  however,  usually  regarded  as  too  harsh. 
Another  theory,  put  forward  by  Brett,  J.,  in  Regina 
v.  Prince,3  is  that  the  guilty  intent  must  always  be 

1  Ex  parte  Barronet,  lE.O.l;  Rex  v.  Bailey,  R.  &  R.  C.  C.  1 ; 
Com.  v.  Boynton,  2  Allen  (Mass.)  160.  Upon  the  general  subject,  see, 
in  addition  to  the  cases  already  cited,  Judge  Bennett's  note  to  Rex  v. 
Wheatly,  1  Lead.  Cr.  Cas.  1  ;  United  States  v.  Anthony, and  Mr.  Green's 
note,  2  Cr.  L.  R.  215  ;  Queen  v.  Mayor.  &c.,  L.  R.  3  Q.  B.  629 ;  State  v. 
Smith,  10  R.  I.  258  ;  Barnes  v.  State,  19  Conn.  398;  Ulrich  v.  Com.,  6 
Bush  (Ky.)  400;  Regina  v.  Prince,  L.  R.  2  C.  C.  R.  154  ;  s.  c.  1  Am. 
Cr.  Rep.  1 ;  Steph  Dig  Cr  L.,  art  34  ;  State  v.  Goodenow,  65  Me.  30; 
Lawrence  v.  Com.,  30  Gratt.  (Va)  845;  McCutcheou  v.  People,  69 
111.  601.  There  are  cases  to  the  contrary  (Stern  v.  State,  53  Ga  229, 
Birney  v.  State,  8  Ohio,  230;  Marshall  v.  State,  49  Ala.  21  ;  Williams 
v.  State,  48  Ind.  306),  which  Mr.  Bishop  approves.  But  by  the  settled 
law  of  England,  and  the  great  weight  of  authority  in  this  country,  the 
doctrine  of  the  text  is  the  better  law.     See  12  Am.  Law  Rev.  469. 

2  Com.  v.  Mash,  7  Met.  (Mass  )  472. 

8  13  Cox  C.  C.  138  ;  L.  R.  2  C.  C.  154. 


42  CRIMINAL  LAW. 

shown,  even  in  statutory  offences,  unless  the  neces- 
sity is  expressly  done  away  in  the  statute.  This 
theory  is  usually  regarded  as  too  narrow. 

The  true  theory  seems  to  lie  between  these  two. 
The  facts  of  each  ease  should  be  looked  at,  and  the 
intention  of  the  legislature,  as  applied  to  those  par- 
ticular facts,  should  be  determined  by  the  court. 
This  can  be  done  by  a  consideration  of  the  general 
scope  of  the  act,  and  of  the  nature  of  the  evils  to  be 
avoided.1 

§  55.  By-Laws  and  Police  Regulations  — In  accord- 
ance with  this  theory,  the  courts  almost  universally 
hold  that  such  minor  provisions  of  the  criminal 
statutes  as  are  adopted  tor  the  regulation  of  the  con- 
duct of  men  in  the  ordinary  affairs  of  lit'',  such  as 
city  by-laws  or  ordinances  and  police  regulations, 
are  to  be  interpreted  strictly,  and  infractions  of 
them  punished,  even  if  committed  without  guilty  in- 
tent. For  instance,  a  guilty  intent  has  been  held 
not  necessary  to  prove  in  prosecutions  for  wrongfully 
selling  liquor,2  or  oleomargarine,8  for  selling  adul- 
terated or  diseased  articles  of  food  or  drink.1  or  for 
permitting  a  minor  to  remain  in  a  billiard  saloon/" 
So  an  infraction  of  the  building  laws  would  be  held 

1  2  Steph  Hist.  Cr.  Law,  117,  Wills.  J.,  in  Regina  v.  Tolson  2.'i 
Q    I",    I)    168. 

-  United  States  >■  Leathers  6  Sawy.  (U.  S.  Circ.  Ct.)  17;  Com  >: 
Boynton,  2  All  0;  Barnes  i-  State,  19 Conn. 398  j   McCntch- 

I  111.  601.     See,  contra,  Williams  v,  Si  306. 

n.  v.  W'.-i.-,  139  l'a  l'17  .  State  '■.  Newton,  50  X.  .1    I. 
4  Com.  v.  Farren,  :i  All.  I  ;  State  r.  Smith.  10  R.  I 

v.  Stanton,  37  <  ''>nn    i:.M.     See,  contra,  Teague  v.  State,  :.'.">  Tex. 
App  577. 

State  v    Probasco,  i'>2  [owa,  100.     See,  contra,  Stem  v.  State,  53 
Qa.  229 j  Marshall  v  state,  49  Ala.  21. 


GENERAL  PRINCIPLES.  43 

punishable,  though  the  owner  of  the  building  was 
ignorant  of  it.1  Upon  the  same  principle,  one  may 
be  convicted  on  an  indicment  for  receiving  lunatics 
into  his  house  without  a  license,  though  he  did  not 
know  them  to  be  lunatics.*2 

§  56.  Immoral  Acts.  —  When  the  offender  was  en- 
gaged in  an  act  which  is  in  itself  immoral,  but  is 
made  criminal  by  statute  only  under  certain  circum- 
stances, he  is  guilty  if  the  circumstances  exist, 
though  he  believed  they  did  not.  Thus,  upon  an  in- 
dictment for  unlawfully  taking  an  unmarried  girl 
under  the  age  of  sixteen  from  her  father's  posses- 
sion, a  bona  fide  belief  that  the  girl  was  over  sixteen 
will  not  protect  the  defendant,  the  act  itself  being 
an  immoral  one.3 

§.57.  Intent  in  other  Cases  generally  required. — 
Where  the  act  forbidden  bj  statute  is  not  in  its 
nature  immoral,  and  the  statute  is  more  than  a  mere 
regulation  of  the  every-day  business  of  life,  the  ten- 
dency of  the  authorities  is  to  require  a  criminal  in- 
tent, unless  the  statute  expressly  does  away  with 
such  requirement.4  The  burden  of  producing  evi- 
dence of  lack  of  intent  is  of  course  on  the  accused, 
since  intent  is  ordinarily  inferred  from  the  act  itself; 
but  if  evidence  of  lack  of  intent  is  introduced,  the 
burden  of  proving  it  is  on  the  government.  Thus, 
upon  an  indictment  for  bigamy,   a  bona  fide  belief 

1  Wills,  J.,  iu  Regina  v.  Tolson,  23  Q  B.  D.  168. 

2  Regina  v.  Bishop,  14  Cox  C.  C.  404,  5  Q.  B.  D.  259. 

3  Regina  v.  Prince,  13  Cox  C.  C.  138,  L.  R.  2  C.  C.  154;  State  v. 
Ruhl,  8  Iowa,  447. 

4  Regina  v.  Tinkler,  1  F.  &  F.  513  ;  Anon.,  Foster  Cr.  L.  (3d  ed.) 
439;  United  States  v.  Beaty,  Hempst.  (U.  S.  Circ.  Ct.)  487;  Lee  v. 
Lacey,  1  Cr.  C.  C.  (D.  C.)  263  ;  Birney  v.  State,  8  Ohio,  230. 


44  CRIMINAL  LAW. 

upon  reasonable  grounds  thai  the  defendant's  wife 
was  dead  at  the  time  of  the  second  marriage  is  by 
the  better  view  regarded  as  entitling  the  defendant 
to  acquittal.1 

JUSTIFICATION    FOB    CRIME. 

§58.  Matters  of  Justification. —  Though  an  act  has 
b  sen  intentionally  committed,  which  is  in  its  nal 
punishable,  by  one  who  is  answerable  for  his  acts,  il 
may  nevertheless  nol  be  punishable  asacrime.  The 
ier  who  intentionally  shoots  an  enemy,  the  sheriff 
who  hangs  a  condemned  murderer  or  seizes  propi 
on  execution,  are  committing  acts  which  are  in  their 
nature  criminal;  yet  the  act,  so  far  from  being  pun- 
ishable, is  done  in  executi  »n  of  a  public  duty.  It 
becomes  therefore  necessary  to  consider  under  what 
circumstances  a  man  may  be  excused  for  the  commis- 
sion of  what  would  otherwise  be  a  crime.  It  will  be 
found  that  these  circumstances  are  comprehended  in 
the  following  classes :  public  authority,  defence,  and 
necessity. 

$  59.  Execution  or  Enforcement  of  Law.  —  Any  net 
dour  by  an  officer  of  the  law  in  execution  of  a  writ 
or  warrant  issued  by  ;i  court  of  competenl  jurisdic- 
tion is  justifiable,  whether  it  lie  to  hang  or  imprison 
a  man.  or  to  seize  his  property.  And  even  a  private 
3on  is  justified  in  preventing  by  force,  even  if 
necessary  by  taking  life,  the  commission  of  treat: 
or  of  a  felony  by  the  use  or  the  threal  of  violence;2 
or  in  arresting  and  keeping  in  custody  such  a  traitor 

1  Regina  v.  Tolson,  23  Q   B   i>  lf,^;  Squire  o.  State,  L6  Lnd.  159 
See,  contra,  Cora   v   Mash.  7  Mel    (Mass)  1 72. 
-  Foster  <'.  I,.  273  .  I  East  I'.  C.  271. 


GENERAL  PRINCIPLES.  45 

or  felon,  or  even  in  killing  him  if  necessary  to  pre- 
vent his  escape.1 

§  60.  Authorization  by  Government.  —  Every  man  is 
justified  in  obeying  the  lawful  commands  of  the 
government  within  the  jurisdiction  of  which  he  is ; 
therefore  no  act  done  in  pursuance  of  such  command 
can  be  a  crime.  But  this  justification  is  good  only 
so  long  as  the  party  justifying  is  within  the  territo- 
rial jurisdiction  of  the  government.  Thus  the  mas- 
ter of  an  English  vessel  may  justify  taking  a  man 
on  board  his  vessel  at  a  Chilean  port,  by  order  of 
the  Chilean  government;  but  he  cannot  justify  any 
restraint  put  upon  the  man  after  leaving  Chilean 
territory.2 

§  61.  Public  Policy.  —  Certain  other  acts  may  no 
doubt  be  justified  upon  the  rather  vague  ground  of 
public  policy.  Thus  one  may  justify  the  destruc- 
tion of  public  property  in  time  of  conflagration  or 
pestilence,  or  the  forcible  entry  on  land  in  time  of 
hostile  invasion.3  So,  no  doubt,  it  would  be  justifi- 
able to  disobey  a  police  regulation  which  forbade 
all  persons  to  leave  their  horses  unattended  in  the 
public  street,  if  the  attendant  left  the  horse  in  or- 
der to  save  life.  So  the  publication  of  obscenity 
is  in  some  cases  justifiable,  as  when  it  is  done  in 
good  faith  in  the  promotion  of  morality,  science,  or 
art,  as,  for  instance,  by  the  publication  of  a  medical 
treatise  or  of  a  literary  classic;4  and  public  officials 
may  justify  the  burning  of  plague-infected  clothing, 
though  it  causes  such  discomfort  in    the    neighbor- 

1  1  East  P.  C,  298.  4  Steph.  Dig.  Cr.  L.,  art.  172. 

2  Regina  v.  Leslie,  8  Cox  C.  C.  269. 
8  Cooley,  Const.  Limit.,  5th  ed.  739. 


46  CRIMINAL  LAW. 

hood  as  amounts  to  a  public  nuisance,  if  it  is  a 
proper  and  reasonable  means  to  prevenl  contagion.1 
Justification  of  this  sorl  has  seldom  been  set  up, 
probably  because  common  sense  usually  prevents  a 
prosecution  in  such  a  case;  and  the  extenl  to  which 
ts  would  go  in  allowing  such  a  defence  cannol 
be  determined. 

§  62.  Authority  of  a  Parent  or  Master.—  Of  a  similar 
nature  is  tin'  right  of  a  parent  or  master  to  govern 
and  correct  his  child  or  apprentice.  Any  act  done 
in  proper  correction  of  a  s  >n,  scholar,  or  apprentice 
is  justifiable.  It  is  only  for  excess  of  force,  or  for 
causeless  and  cruel  punishment,  that  a  criminal 
prosecution  can   be  brought.2 

§63.  Defence.  —  In  defending  person  or  property 
against  an  unlawful  attack,  certain  arts  are  justifi- 
able; but  it  must  in  all  cases  appear  that  they  arc 
both  reasonable  and  necessary.  A  mere  attempt  to 
commit  larceny  does  not  justify  the  owner  of  the 
property  attacked  in  killing  the  offender;  nor,  if  a 
felon  can  easily  be  captured,  is  it  justifiable  to  kill 
or  maim  him.  This  principle  is  to  be  borne  in 
mind  in  all  cases  of  defence. 

The  force  used  in  defence  must  be  continued  only 
so  long  as  isnecesary.  The  right  of  self-defence  will 
not  justify  one  in  continuing  an  affray.8 

'.  Self-defence.  —  1  n  order  to  defend  himself 
from  d'  ath  or  serious  bodily  harm,  one  maj  use  such 
force  as  is  necessary,  and  even  kill  as  a  last  resort.4 

1  State  '•.  Mayor  &  Aldermen  of  Knoxville,  12  Lea  (Term.)  146. 

a  1  East  I'.  C.  261  ;  Steph   Dig.  Cr.  I. .  art   201. 

>  Regina  v.  Knock,  14  Cox  C.  C.  1. 

4  Statr  v.  Burke,  30  fowa,  331  :  Foatei  C.  L.  273. 


GENERAL   PRINCIPLES.  47 

But  all  other  reasonable  means  should  be  exhausted 
before  killing.  If  a  retreat  in  safety  is  possible,  it 
should  be  tried.1  In  the  old  phrase,  the  party  at- 
tacked must  "  retreat  to  the  wall. " 

If  however,  one  is  the  aggressor  in  an  affray,  he 
will  not  be  justified  in  doing  any  act  in  the  course  of 
the  affray,  even  if  it  is  done  in  self-defence.2  But 
he  may  withdraw  from  the  affray  in  good  faith,  and 
if  he  is  then  pursued  and  attacked  by  the  other  party 
he  may  defend  himself.3 

If  an  attack  on  a  person  is  not  of  such  violence  as 
to  threaten  severe  bodily  harm,  his  resistance  must 
stop  short  of  injury  to  life  or  limb.  For  instance, 
one  may  not  take  life  to  prevent  an  unlawful  arrest.4 
A  case  may,  however,  be  imagined  where  even  the 
taking  of  life  would  be  justifiable  in  resisting  an  un- 
lawful arrest,  as  when  the  arrest  is  threatened  by 
outlaws  or  savages.  The  danger  of  such  an  arrest 
would  be  as  grave  as  that  of  bodily  harm. 

The  assaulted  party  is  not  required  to  make  de- 
fence to  an  attack  that  seems  to  threaten  bodily  harm 
at  the  risk  of  himself  being  guilty  if  he  is  mistaken. 
If  the  apprehension  of  bodily  harm  is  reasonable,  the 
party  attacked  is  justified  in  doing  all  that  is  neces- 
sary to  avoid  the  apparent  danger,  even  though  no 
severe  harm  was  in  fact  intended.5 

§  65.  Defence  of  Another  Person. —  Such  force  as  a 
man  may  use  in  defence  of  himself,  he  may  also  use 
in  defence  of  one  dependent  on  him  for  protection; 
as  a  parent  or  child,  wife,  master,  or  servant.6 

1  Duncau  ?•.  State.  49  Ark.  543.      4  Cr^hton  ?•.  Com.,  84  Ky.  103. 

2  State  v.  Gilmore,  95  Mo.  554.      5  Shorter  ;;.  People.  2  N.  Y.  193. 

*  Parker  v.  State,  88  Ala.  4.  6  Regina  v.  Rose,  15  Cox  C.  C.  540. 


48  CRIMINAL   LAW. 

§  66.  Defence  of  Property.  —  One  may  use  such  rea- 
sonable force  as  is  necessary  to  defend  one's  prop- 
erty, which  is  in  one's  possession,  from  attack.  Thus, 
reasonable  force  may  be  used  to  oust  an  intruder 
from  real  estate,1  or  to  repel  an  unlawful  attempt  to 
seize  a  chattel.2  And  if  possession  of  such  property 
has  hem  unlawfully  taken,  the  owner  has  the  i 
of  immediate  recapture. 

But  the  defence  of  property  must  stop  short  of 
killing  or  severe  bodily  harm.  No  one  merely  to 
defend  his  property  has  the  right  to  endanger  life.3 

§67.  Defence  of  the  "Castle." — The  law  allows  a 
certain  protection  to  one's  dwelling-house  which  is 
not  given  to  ordinary  property;  and  some  acts  of 
defence  are  allowable  in  one's  dwelling-house  which 
could  not  be  lawfully  committed  outside.  For  in- 
stance, where  one  is  attacked  and  retreats,  he  need 
ret  nut  no  farther  than  the  threshold  of  his  dwelling. 
Any  force,  even  to  killing,  is  allowable  to  keep  out 
of  one's  dwelling  an  assailant  who  threatens  death  or 
severe  bodily  harm.4  And  one  who  is  attacked  while 
in  his  dwelling-house  by  an  assailant  outside  is  jus- 
tified in  keeping  his  assailant  outside  the  house  by 
the  use  of  any  necessary  force.5 

It  has  been  said  in  the  authorities  that  any  force, 
even  death,  is  justifiable  in  putting  out  of  one's  dwell- 
ing-house one  who  has  entered  peaceably,  though 
unlawfully,   and,  having  entered,  makes  a    forcible 

1  Com,  v.  Clark,  2  Met.  (Mass.)  23. 

2  Com.  v.  Kennard,  8  Pick.  (Mass.)  133. 

■  State  v.  Zellnrs,  7  X.  .1.  L.  220;   Storey  v.  State,  71  Ala  338. 

4  l  Male  l'.c.  186;  Statev.  Middlehara,  62  Iowa,  I50j  Bledsoe  v. 
Com..  7  s.  W.  Rep  884  (Ky.). 

5  Stati        !'.•■<  rson,  i;,  Vt  308. 


GENERAL  PRINCIPLES.  49 

attack  on  the  owner. 1  It  would  seem,  however,  that 
all  other  means  short  of  killing  should  be  tried;  and 
that  if  it  is  practicable  to  defend  the  occupants  by 
other  means  short  of  killing,  as  by  the  imprison- 
ment of  the  assailants  in  the  house,  this  should 
be  done,  though  the  assailant  still  remains  within 
the  house  against  the  owner's  will.  The  case  is 
not  now  one  of  defence  of  the  castle,  but  only  of 
the  occupants. 

The  right  of  defence  of  a  dwelling-house  does  not 
extend  to  the  land  about  it.  One  may  not  kill  in 
order  to  prevent  an  aggressor  from  entering  the 
door-yard.2 

§  Gti.  Necessity  — -  It  has  been  said  that  the  pressure 
of  circumstances  may  be  so  great  as  to  justify  one 
for  an  act  which,  but  for  such  pressure,  would  be  a 
crime ;  as  svhere  a  council,  without  authority,  depose 
and  imprison  a  governor,  to  prevent  irreparable  mis- 
chief to  the  State;3  or  one  of  two  persons  swimming 
in  the  sea  supported  by  a  plank  thrusts  the  other  off, 
if  by  so  doing  one  would  be  saved,  and  by  not  so 
doing  both  would  be  lost.4 

The  exact  limits  of  this  doctrine,  even  if  it  is 
sound,  cannot  be  fixed.5  It  certainly  does  not  jus- 
tify a  party  of  shipwrecked  sailors  in  killing  the 
weakest  of  their  number,  though  it  seemed  the  only 
way  to  preserve  their  lives.6      It  would  seem  that 

i  1  Hale  P.  C  486. 

2  Lee  v.  State,  9  So.  Rep.  407  (Ala.). 

3  Rex  v.  Stratton,  21  St.  Tr.  1041. 

4  Bacon's  Maxims,  No.  5.  See  also  United  States  v.  Holmes,  1  Wall. 
Jr.  (U.  S.  Circ.  Ct.)  1. 

5  Steph.  Dig.  Cr.  L,  art.  32. 

6  Regina  v.  Dudley,  14  Q.  B.  D.  273;  s.  c.  15  Cox  C  C.  624. 

4 


50  CRIMINAL  LAW 

merely  on  the  ground  of  necessity  the  killing  of 
another  can  never  be  justified.  If  circumstances 
threaten  one  man's  life,  there  is  no  principle  of  law 
which  could  justify  him  in  shitting  the  danger  to 
another  man.  It',  to  be  sure,  one  man  has  seemed  a 
tabula  in  naufragio,  and  another  attempts  to  share 
it,  so  endangering  the  life  of  the  former,  he  may 
protect  himself;  but  it  is  a  case  not  of  necessity,  but 
of  self-defence.  The  same  would  seem  to  be  true  in 
the  case  put,  of  deposing  a  tyrannical  governor.  In 
other  cases,  the  principle  of  public  policy,  already 
stated,  may  justify  a  crime.  Apart  from  these  prin- 
ciples, it  is  doubtful  whether  there  is  any  justifica- 
tion in  the  fact  that  a  crime  was  committed  through 
SO  called  necessity,  that  is,  by  reason  of  extreme 
pressure  of  circumstances.  If  it  is  shown,  in  defence 
to  an  indictment  for  larceny  of  bread,  that  it  was 
stolen  to  save  the  defendant's  life,  the  question 
would  seem  to  be  whether  it  is  for  the  interest  of  the 
public  that  such  a  fact  should  justify  larceny.  It 
might  well  be  held  for  the  public  interest,  in  order 
to  prevent  the  increase  of  crime,  that  a  man  under 
such  circumstances  should  be  held  to  a  choice  of 
evils,  starvation  or  crime,  and  should  not  be  allow,  d 

legally  to  shift  his  misfortune  to  the  owner  of  the 
bread,  if  this  view  were  taken,  the  facts  of  the  case 
ought  not  to  justify  the  larceny;  though  they  should 
doubtless  be  considered  in  assessing  the  punish- 
ment. 

CLASSIFICATION    OF    CRIMINALS. 

§  bit.    Principals  and  Accessories.  —  Criminals  guilty 
of   felony    arc    classified   by  the    common    law,    ac- 


GENERAL  PRINCIPLES.  51 

cording  to  the  nearness  or  remoteness  of  their  con- 
nection with  the  crime  committed,  into  principals 
and  accessories.  In  high  treason  all  are  principals, 
on  account,  it  is  said,  of  the  heinousness  of  the 
crime ;  and  in  misdemeanors  all  are  principals,  be- 
cause it  is  beneath  the  dignity  of  the  law  to  distin- 
guish the  different  shades  of  guilt  in  petty  crimes.1 
And  of  principals,  in  felony,  we  have  those  of  the 
first  and  second  degrees. 

A  principal  in  the  first  degree  is  the  perpetrator  of 
the  act  which  constitutes  the  crime,  whether  he  does 
it  with  his  own  hand,  or  by  the  hand  of  an  innocent 
third  person, — the  third  person  being  ignorant  of 
the  character  of  the  act  perpetrated;2  where,  for  in- 
stance, a  parent  puts  poison  into  the  hands  of  his 
son  not  yet  arrived  at  the  age  of  discretion,  and 
directs  him  to  administer  it,  —  or  one  person,  by 
fraud,  force,3  threats,  or  otherwise,  induces  another 
to  take  poison4  or  to  steal,  — the  fact  that  the  insti- 
gator is  not  actually  present  is  immaterial,  if  the  con- 
nection between  him  and  the  act  be  direct,  or  the 
crime  be  committed  under  such  circumstances  that  no 
one  but  the  instigator  can  be  indicted  as  principal. 
Otherwise,  a  crime  might  be  committed,  and  no  one 
would  be  guilty  as  principal.5 

When  several  persons  participate  in  an  act,  each 
doing  a  part  and  neither  the  whole,  as  where  several 

i  4  Bl.  Com.  35. 

2  State  v.  Shurtliff,  18  Me.  368  ;  Bishop  v.  State,  30  Ala.  34  ;  Regina 
v.  Bannen,  2  Moo.  C.  C.  309. 

3  Collins  v.  State,  3  Heisk.  (Tenn.)  14;  1  Hale  P.  C.  514;  Regina 
v  Michael,  2  Moo.  C.  C.  120. 

4  Blackburn  v.  State,  23  Ohio  St.  146. 

&  1  Hale  P  C.  514 ;  Vaux's  Case,  4  Coke,  44. 


52  CRIMINAL  LAW. 

take  part  in  a  single  burglary,  all  arc  principals  in 
the  tirsi  degree.1 

Principals  in  the  second  degree  arc  those  who, 
without  actually  participating  in  the  act  itself,  are 
present  aiding  and  encouraging  the  party  who  com- 
mits the  act;  as  where  one  undertakes  to  watch  to 
prevent  the  principal  from  being  surprised,  or  to  aid 
hi  in  to  escape,  or  in  some  other  way  to  be  of  immedi- 
ate and  direct  assistance  to  him  in  the  promotion  of 
his  enterprise.2  The  principal  of  the  second  degree 
need  not  be  actually  on  the  spot  where  the  crime  was 
committed.  Thus  where  one,  in  pursuance  of  a  plan, 
enticed  the  owner  of  a  shop  to  a  place  at  some  dis- 
tance, and  kept  him  there  while  his  confederates 
broke  into  the  shop,  he  was  held  guilty  of  burglary 
as   principal.3 

In  this  way  one  may  be  guilty  as  principal  of  a 
crime  which  he  could  not  commit;  for  instance,  a 
woman  present  aiding  and  abetting  may  be  guilty  of 
rape.4 

This  distinction  of  the  old  law,  however,  between 
principals  of  the  first  and  principals  of  the  second 
degree,  is  not  now  regarded  with  any  favor,  and  in 
fact  it  has  in  many,  if  not  most,  of  the  States  be- 
come practically  obsolete.5  Some  statutes,  however, 
recognize  it,  and  in  some  the  punishment  is  based 
upon  the  distinction. 

i  Rex  v.  Kirkwood,  1  Moo.  C.  0.  304. 

2  4  151.  Coin.  30;  Kex  v.  Owen,  1  Moo.  C.  C.  96;  Com.  v.  Knapp,  9 
Pick.  (Mass  )  196. 

8  Bropse  v.  State,  12  Ohio  St.  I4G ;  and  see  State  v.  Hamilton.  1,') 
Nev.  .386. 

«  State  >•.  Jones,  83  N.  C.  605. 

6  1  Bish.  Cr.  Law,  §  648. 


GENERAL  PRINCIPLES.  53 

§  TO.  Accessories  are  divided  into  two  classes,  — 
those  before  and  those  after  the  fact.  An  accessory 
before  the  fact  is  one  who,  without  being  present  aid- 
ing or  abetting,  procures,  advises,  or  commands  an- 
other to  commit  the  crime.1  An  accessory  after  the 
fact  is  one  who,  knowing  the  fact  that  a  felony  has 
been  committed,  receives,  relieves,  comforts,  or  assists 
the  felon.2  These  distinctions  grew  out  of  the  rule 
of  the  common  law,  that  every  offence  should  be  par- 
ticularly described,  so  that  the  party  charged  might 
know  with  reasonable  certainty  to  what  he  was  to 
answer.  The  tendency  of  the  modern  law  is  to  dis- 
regard the  distinction,  so  far  as  it  can  be  done  consis- 
tently with  the  observance  of  the  rules  of  pleading.3 

The  offences  of  advising  another  to  commit  a 
felony,  the  adviser  not  being  present  at  its  commis- 
sion, and  of  receiving  and  concealing  stolen  goods, 
are,  so  far  as  the  circumstantial  description  is  con- 
cerned, different  from  the  felonies  themselves,  and 
in  several  of  the  States  the  latter  has  been  by  statute 
made  a  distinct  and  substantive  offence,  punishable 
whether  the  principal  felon  has  or  has  not  been  tried 
and  convicted,  though  under  the  ancient  common 
law  the  accessory  could  be  put  upon  his  separate 
trial  only  in  case  the  principal  had  been  tried  and 
convicted.  This  rule  was  adopted  to  avoid  the  ab- 
surdity of  convicting  an  accessory  and  afterwards 
acquitting  the  principal.     And  where  now  the  acces- 

1  4  Bl.  Com.  63. 

2  4  Bl.  Com.  37. 

3  People  v.  Newberry,  20  Cal.  439  Ch.  94,  §  2, 24  &  25  Vict.,  makes 
accessories  before  the  fact  and  principals  in  the  second  degree  indict- 
able as  if  they  alone  had  committed  the  act,  although  any  other  party 
to  the  crime  may  have  been  acquitted. 


54  CRIMINAL  LAW. 

sory  may  be  tried  before  or  after  the  principal  is 
convicted,  if  afterwards,  before  sentence,  the  princi- 
pal be  tried  and  acquitted,  the  accessory,  already 
convicted,  on  proof  of  the  acquittal  of  the  principal, 
will  be  entitled  to  his  discharge,  the  statute  modify- 
ing the  common  law  rule  only  so  far  as  to  allow  of 
the  trial  of  an  accessory  before  or  after  the  conviction 
of  the  principal,  but  not  after  his  acquittal.1 

An  accessory  before  the  fact  in  one  State  to  a 
Eelony  committed  in  another  State  is  amenable  to 
the  courts  of  the  State  where  he  became  accessory, 
although  the  principal  can  only  be  tried  where  the 
felony  was  committed.2 

It  matters  not  how  remote  the  accessory  be  from 
the  principal.  If  A.  through  one  or  more  inter- 
mediate agents  procures  a  person  to  commH  a  Eelony, 
he  is  accessory  to  the  latter  as  principal;  and  one 
may  be  an  accessory  after  the  fact  to  an  accessory 
before  the  fact,  by  aiding  and  concealing  him.3 

It  is  also  a  principle  of  the  common  law  that  the 
offence  of  the  accessory  cannot  be  greater  than  that 
of  the  principal.4 

§71.  Commission  of  a  different  Crime.  —  A  person 
who  advises  or  assists  in  the  commission  of  a  par- 
ticular crime  cannot  be  held  as  principal  in  the 
second  degree,  or  as  accessory  to  a  principal,  who 
commits  a  substantially  different  crime,  unless  the 

i  McCarty  v.  State,  44  Ind.  214  ;   s.  o.  2  Green's  Cr.  Law  Rep.  715. 
A  substantially  similar  statute  exists  in  mosl  of  the  Stairs,  as  v. 
in  England.     Sec  post,  §  7:i. 

-'  stat.-  v.  <  lhapin,  17  Ark.  5G1.    Seo  also  Adams  v.  People,  l  <  !omst 
(N.  Y.)   173;   Stan-  v.  Eticker,  29  Me.  84;   Com.  v.  Smith,  11    . 
(Mas-  )  243;  Bolmes  v.  Com  ,  25  Pa.  s2\  ;  2  Burr's  Trial,  440 

»  2  Hawk.  P.  C,  c.  29,  §  1.  4  Ibid. 


GENERAL  PRINCIPLES.  55 

latter  is  the  natural  result  of  the  effort  to  commit 
the  one  advised. l  Thus,  if  a  person  advises  another 
to  beat  a  third,  he  is  accessory  to  the  beating  and  its 
natural  consequences,  but  he  is  not  accessory  to  the 
different  and  additional  crime  of  rape  committed  by 
the  principa-1.2  Where  one  entered  a  house  to  com- 
mit rape,  and  his  confederate  outside,  in  order  to 
prevent  discovery,  killed  one  who  attempted  to  enter, 
the  one  who  entered  is  guilty  of  the  homicide;3  but 
the  confederate  would  not  be  guilty  of  homicide  in 
case  the  one  who  had  entered  killed  the  girl  by 
throwing  her  out  of  the  window,  to  prevent  detec- 
tion, after  his  purpose  was  accomplished.4  Murder 
in  the  course  of  robbery  or  burglary  is  not  an  unex- 
pected result,  and  all  confederates  arc  guilty  of  it;5 
and  the  same  is  true  of  murder  committed  in  the 
course  of  an  attempt  to  escape  from  jail,  the  confed- 
erates being  armed.6  The  rule  has  been  stated  gen- 
erally in  England  by  Lush,  J.,  at  Nisi  Prius,  that,  if 
several  persons  agree  together  to  commit  a  criminal 
act  in  a  particular  way,  each  is  responsible  for  the 
acts  of  the  others  done  in  the  way  agreed  on,  but  not 
for  acts  done  in  any  other  way.  If,  for  instance,  A. 
and  B.  agree  to  assault  C.  with  their  fists,  each  is  re- 
sponsible for  the  consequences  of  an  assault  by  the 
other  with  the  fists.     But  A.  is  not  responsible,  if  B., 

i  2  Hawk.  P.  C,  c.  29,  §  18;    Lamb  v.  People,  96  111.  73;  State  v. 
Lucas,  55  Iowa,  321. 

2  2  Hawk.  P  C,  c.  29,  §  18;  Watts  v.  State,  5  W.  Va.  532. 

3  Mercersmith  v.  State,  8  Tex.  App.  211. 

4  People  v.  Knapp,  26  Mich.  112. 

5  Ruloff  v.  People,  45  N.Y.  213  ;  State  v.  Johnson,  7  Ore.  210;  State 
v.  Davis,  S7  N.  C.  514. 

6  State  v  Allen,  47  Conn   121. 


56  CRIMINAL  LAW. 

without  his  knowledge,  uses  a  knife,  for  the  conse- 
quences of  any  injury  by  the  knife.1  But  it  may  be 
doubted  if  this  is  sound  law.2 

§  7±  No  Accessories  in  Misdemeanors.  —  In  misde- 
meanors all  arc  principals,  and  so  the  common  law 
seems  to  have  held  of  treason.  To  felonies,  there- 
fore, the  distinction  is  confined.3 

§  73.  Accessories  in  Manslaughter.  — At  common  law- 
it  was  once  held  that  one  could  not  be  accessory 
before  the  fact  to  manslaughter,  because  that  offence 
was  in  its  nature  sudden  and  unpremeditated.4  But 
it  has  been  said  by  high  authority  that  Lord  Hale  in 
thus  stating  the  law  alludes  only  to  cases  of  killing 
per  infortunium,  or  in  self-defence,  and  that  in  other 
cases  of  manslaughter  there  seems  to  be  no  reason 
why  there  may  not  be  accessories.5  However  this 
may  be,  the  question  becomes  unimportant,  in  those 
States  which  do  not  favor  the  distinction  between 
principals  in  the  first  and  second  degree,  and  prin- 
cipal and  accessory  before  the  fact;  and  their  a  man 
indicted  as  accessory  before  the  fact  to  murder  may 
be  convicted,  though  bis  principal  may  have  been 
convicted  of  manslaughter  only,  or  even  if  he  have 
been  acquitted.6 

1  Regina  v  I  laton,  12  Cox  C.  C.  624. 

2  See  i  Bl   Com.  ."7  ;  Foster  Crim.  Law,  369. 

3  Regina  u  Greenwood,  2  Den  C.C.  45.3;  Com.  v.  Ray,  3  Gray 
(Mass)  m.  Ward  v.  People,  6  Hill  (N.  Y.)  144;  Williams  v  State, 
12  S.  ,v  M.  (Miss.)  58  ;  State  v.  Goode,  I  Hawks  (N.  C  )  463 ;  Com.  v. 
McAtee,  8  Dana  (Ky  )  28. 

4  I   Hal.-  P.  ('.  437. 

&  Erie,  .1  ,  Regina  v  Gaylor,  7  Cox  C.  C.  253;  Regina  -  Taylor,  13 
Cox  C.  C.  68.  See  also  State  v  Coleman,  5  Port.  (Ala.)  32;  Ilex  u. 
Greenacre,  8C.i  I ' 

0  People  '•  Newberry,  20  Cal.  439.    Sec  ante,  §  70. 


GENERAL  PRINCIPLES.  57 

Where  one  employs  a  second  to  procure  a  third 
person  to  commit  a  felony,  the  first  two  are  acces- 
sories to  the  third  principal.  And  this  is  true, 
although  the  first  knows  not  who  the  third  may  be.1 
So  one  may  be  accessory  after  the  fact  by  procuring 
another  to  assist  the  principal.2  And  where  one 
would  become  an  accessory  if  the  offence  instigated 
should  be  committed,  yet,  if  before  its  commission 
he  countermands  his  advice  and  withdraws  from  the 
enterprise,  he  is  not  accessory  to  any  act  done  after 
notice  actually  given  of  the  withdrawal.3  He  is  only 
accessory  to  the  act  which  has  been  committed  when 
the  aid  is  rendered.  Thus,  where  one  renders  aid 
after  a  mortal  stroke,  but  before  the  consequent 
death,  he  is  not  accessory  to  the  death.4 

§  74.  Husband  and  Wife.  —  By  the  common  law  the 
duty  of  a  wife  to  succor  and  harbor  her  husband  pre- 
vented her  from  incurring  the  guilt  of  an  accessory 
after  the  fact  thereby.  But  no  other  relationship 
was  a  protection.5  By  statute,  however,  in  some  of 
the  States,  other  relationships  have  been  made  a  pro- 
tection. But  though  the  wife  cannot  be  an  accessory 
after  the  fact  to  her  husband  as  principal,  and  it  is 
said  that  for  the  same  reason  —  relationship  and 
duty  to  succor  and  protect  —  the  husband  cannot  be 
accessory  after  the  fact  to  the  wife,6  (against  the 
opinion,    however,    of    the   older    authorities,7)   yet 

i  Rex  v.  Cooper,  5  C.  &  P.  535. 

2  Rex  v.  Jarvis,  2  M.  &  R.  40 ;  State  v.  Engeman,  23  Atl.  Rep.  676, 
678  (N.J). 

3  l  Hale  P  C.  618.  *  1  Hale  P.  C.  602. 

5  2  Hawk.  P.  C,  c.  29,  §  34. 

6  1  Deac.  Cr.  Law,  15 

7  4  Bl.  Com.  38;  1  Hale  P.  C  621 ;  2  Hawk.  P.  C,  c.  29,  §  34. 


58  CRIMINAL   LAW. 

either  may  be  accessory  before  the  fact  to  the  other 
as  principal.1 

§  75.  Assistance  must  be  Personal.  —  By  a  very  nice 
distinction,  it  is  held  that  he  who  buys  or  receives 
stolon  goods,  though  he  may  be  guilty  of  a  substan- 
tive misdemeanor,  is  not  an  accessory,  because  he 
does  not  receive  or  assist  the  thief  personally,  it 
being  necessary  to  constitute  au  accessory  after  the 
fact  that  the  act  should  amount  to  personal  assist- 
ance to  the  principal; 2  while  he  who  assists  him  in 
further  carrying  them  away,  after  they  have  been 
stolen,  is  an  accessory.3  On  the  other  hand,  a  per- 
son who  is  in  fact  absent  and  away  from  the  place 
where  the  crime,  by  previous  arrangement,  is  com- 
mitted,—  as  where  he  entices  and  keeps  away  the 
owner  of  a  store  while  his  confederate  robs  it,  this 
absence  being  in  furtherance  and  part  of  the  enter- 
prise,—  is  not  an  accessory,  but  a  principal.4  So, 
if  he  watches  for  the  purpose  of  giving  information, 
or  other  aid  if  neeessary.6  Mere  presence,  however, 
without  approval  known  to  the  principal,  or  other 
mragement,  evidenced  by  some  act,  does  not 
make  one  an  accessory.''  Nor  is  one  absent,  though 
in  some  sense  aiding,  as  the  stakeholder  to  a  prize- 
fight, to  be  regarded  as  an  accessory.7 

>  Regina  v.  Manning,  2  C.  &  K.  oo.T  ;  Rox  v  Morris,  R.  &  R.  270 
*  4  Bl.  Com.,  38 ;  Loyd  v  State,  42  Ga.  221 ;  People  v.  Cook,  5  Park 
X   V.)  C.  !:.  351  .   Regina  v.  Chappie,  9  C.  &  P. 
a  Ri  Norton  v.  People,  8  Cow.  (X.  Y.)  137. 

4  Breese  v.  State,  12  Ohio  St.  146. 

5  Doan  v.  State,  26  In-l  495. 

«  United  Jones,  3  Wash  Circ.  C.  223;  State  v,  Hildreth,  9 

Ired   (N.  C)  440;  Clem  v  State,  33  [nd   418. 
7  Regina  v.  Taylor,  13  Cox  C.  C.  68. 


GENERAL  PRINCIPLES.  59 

§  76.  An  Accomplice  is  one  who  shares  in  the  com- 
mission of  the  crime  in  such  manner  that  he  may  be 
indicted  with  the  principal  as  a  participator  in  the 
offence.  Therefore,  under  a  statute  for  unlawfully 
administering  a  drug  to  a  pregnant  woman  with  in- 
tent to  procure  a  miscarriage,  the  woman  is  not  an 
accomplice.1  Nor  is  a  person  who  enters  into  a  pre- 
tended confederacy  with  another  to  commit  a  crime, 
and  aids  him  therein  for  the  purpose  of  detecting 
him,  having  himself  no  criminal  intent,  either  an 
accessory  or  an  accomplice.2  Nor  is  one  who  en- 
traps another  into  the  commission  of  a  crime  for  a 
like  purpose.3  So,  under  an  indictment  for  betting 
at  ten-pins,  one  who  merely  takes  part  in  the  game, 
but  does  not  bet,  is  not  an  accomplice.4 

The  question  whether  one  is  an  accomplice  usually 
arises  in  the  course  of  a  trial,  as  a  question  of  evi- 
dence, and  is  to  be  determined  by  the  jury,  under 
instructions  from  the  court  as  to  what  constitutes 
an  accomplice.5  Being  particeps  eriminis,  his  evi- 
dence may  be  regarded  as  that  of  a  criminal.  And 
it  is  the  usual  practice  of  the  courts  to  advise  not 
to  convict  upon  the  uncorroborated  testimony  of  an 
accomplice.6 

1  State  v,  liver,  .39  N.  J.  598 ;  Com.  v.  Boynton,  116  Mass.  -343. 

2  Rex  v.  Despard,  28  How.  St.  Trials,  346;  State  v.  MeKean,  .36 
Iowa,  343. 

3  Com.  v.  Downing,  4  Gray  (Mass.)  29;  State  v.  Anone,  2  N.  & 
McC.  (S.  C.)  27;  People  v.  Barric,  49  Cal.  342,  Alexander  v  State, 
12  Tex.  540. 

4  Bass  v.  State,  37  Ala.  469. 

5  Com.  v.  Glover,  111  Mass.  395;  State  v.  Schlagel,  19  Iowa,  169. 

6  See  post,  §  130. 


gO  CRIMINAL  LAW. 


LOCALITY    AND    JURISDICTION. 


§  77.  Territorial  Jurisdiction. —  As  a  rule,  an  offence 
againsl  the  laws  of  one  sovereignty  is  no  offence 
against  the  laws  of  another;  and  one  sovereignty 
has  no  jurisdiction  over,  and  will  not  undertake 
to  punish,  crimes  committed  in  another.  The  ju- 
risdiction of  a  country  extends  only  to  its  bounda- 
ries, unless  it  is  bounded  by  the  high  seas.  In  ease 
it  is  so  bounded,  the  government  has  a  quasi  territo- 
rial jurisdiction  over  the  sea  for  a  distance  of  three 
miles  from  the  shore.1 

The  jurisdiction  of  the  court  in  which  an  indict- 
ment is  found  commonly  extends  only  over  a  single 
county,  or  a  smaller  division  of  territory,  and  in  such 
case  it  is  necessary,  in  order  to  show  jurisdiction  in 
the  court,  to  prove  not  only  that  the  crime  was  com- 
mitted within  the  jurisdiction  of  the  sovereignty,  but 
also  within  that  portion  of  it  over  which  the  court 
has  jurisdiction. 

In  many,  if  not  all  of  the  States,  it  is  provided 
that,  whenever  a  crime  is  committed  within  a  certain 
distance  of  a  county  line,  the  courts  of  either  county 
may  have  jurisdiction,  —a  provision  rendered  neces- 
sary to  prevent  a  failure  of  justice,  from  inability  to 
prove  beyond  reasonable  doubt  the  exact  spot  where 
the    crime  was  committed. 

Tt  is  further  to  be  noted,  that  jurisdiction  to  try  for 
the  commission  of  a  crime  is  conferred  by  the  law, 
and  not  by  the  consent  of  parties.2 

i  Regina  v  Keyn,  13  C,\  C.  C.  403. 
2  People  v.  Granice,  50  Cal.  447. 


GENERAL  PRINCIPLES.  61 

§  78.  Jurisdiction  on  the  High  Seas.  —  For  the  pur- 
poses of  jurisdiction,  a  private  vessel  upon  the  high 
seas  is  to  be  regarded  as  a  part  of  the  sovereignty 
whose  flag  she  carries,  and  crimes  committed  on 
board  of  her  while  at  sea  are  cognizable  only  by  that 
sovereignty,1  even  though  committed  by  a  foreigner.2 
When,  however,  such  vessel  comes  within  the  ju- 
risdiction of  another  civilized  power,  crimes  com- 
mitted on  board  of  her  are  cognizable  by  the  power 
into  whose  limits  she  has  come,3  if.  they  are  a 
breach  of  the  peace  of  that  sovereignty.  The  sov- 
ereignty of  the  flag  still,  however,  has  concurrent 
jurisdiction.4 

Where  a  crime  is  committed  on  the  high  seas  by 
outlaws,  that  is,  by  pirates,  any  civilized  govern- 
ment which  captures  the  pirates  has  jurisdiction  to 
punish  the  crime.5 

§  79.  Locality  of  Crime.  —  When  a  crime  is  com- 
mitted, its  locality  is  the  place  where  the  public  is 
injured,  that  is,  where  the  act  takes  effect.  Thus, 
where  a  force  is  set  in  motion  in  one  State  or  for- 
eign sovereignty,  and  by  continuity  of  operation  takes 
effect  in  another,  the  courts  of  the  latter  have  juris- 
diction to  punish  the  crime  as  if  all  the  res  gestae  had 
taken  place  within  its  territory.  If,  for  instance, 
a  man  standing  on  one  side  of  the  boundary  between 
two  States  intentionally  discharges  a  gun  at  a  per- 
son standing  on  the  other  side  of  the  boundary,  and 

1  Regina  v.  Armstrong,  13  Cox  C.  C.  184. 

2  Regina  v.  Lopez,  7  Cox  C.  C.  431. 

3  Wildenhus's  Case,  120  U.  S.  1  ;  People  v.  Tyler,  7  Mich.  161 ; 
8  Mich.  320. 

4  Regina  v.  Anderson,  11  Cox  C.  C.  198. 

6  The  Marianna  Flora,  11  Wheat.  (U.  S.)  1. 


(jo  CRIMINAL  LAW. 

injures  him,  the  offence  may  be  punished  at  the 
domicil  of  the  injured  party.1  So,  if  a  man  resident 
in  one  sovereignty  sends  an  innocenl  agent  into  an- 
other, wh<»  by  means  oi  false  pretences  obtains  money 
from  a  person  resident  in  the  latter,  the  principal  is 
guilty  of  an  offence  in  the  latter,  and  may  be  pun- 
ished by  its  tribunals,  if  the  offender  be  found  within 
the  limits  of  their  jurisdiction.2 

But  it  is  the  act,  and  nut  the  result  of  the  act, 
which  makes  a  crime;  consequently,  the  crime  of 
murder  is  committed  where  the  blow  is  struck,  not 
where  the  victim  dies.3 

Tt  may  happen  that  an  attempt  to  commit  a  crime 
may  he  indictable  in  one  place,  while  the  crime  con- 
summated must  lie  indicted  in  another;  as  where 
one  encloses  a  forged  note  in  a  letter,  and  deposits 
it  in  one  post-office  directed  to  another,  the  deposit- 
ing may  be  indicted  at  the  former  place  as  an  at- 
tempt to  utter,  while  the  consummated  crime  may 
be  indicted  in  the  latter  place.4  On  the  other  hand, 
a  person  may  be  convicted-of  embezzlement  by  the 
tribunals  of  the  State  in  which  he  was  intrusted  with 
the  property  embezzled,  although  the  fraudulent  con- 
version took  place  in  another  State.5 

1  Com.  r.  Maoloon.  101  Mass.  1.      See  also  1  Bish.  Cr.  Law.  §  112 

.  i'.ir  some  observations  tending  to  limit  the  doctrine  of  Com 
v.  Mar]. h'ii. 

2  Adam*  n.  People,  l  Comst.  (N.  Y.)  IT-'};  State  o.  Chapin,  17  Ark 
561  ;  Johns  v.  State,  19  End  421. 

1  l'nite<l  States  r.  Guiteau,  l  Mack.  (1).  ('.)  498;  Green  v  Stati 
Ala.  40;  -  21   Minn.  369. 

'  People  v.  Rathbnn,  -2]  Wend.  (N.  Y.)  509;  William  Perkins's 
0ase,2LCT  C  C  150;  United  States  d  Worrall,  2  Dall.(U.S.J  384j 
Regina  v.  Burdett,  3  B.  &  Aid.  717  ;  4  B.  &  Aid.  95. 

»  State  v.  Haskell,  :y.j  Me.  127. 


GENERAL  PRINCIPLES.  63 

§  80.  Continuing  Crime.  —  Where  a  thief  steals 
goods  in  one  county  and  brings  the  goods  into  an- 
other, where  he  is  taken  with  them,  he  may  be  in- 
dicted for  larceny  in  the  county  in  which  he  is  taken. 
A  robber,  however,  in  one  county  becomes  merely  a 
thief  in  another,  by  taking  his  stolen  goods  into  the 
latter.1  The  doctrine  has  been  explained  on  the 
rather  doubtful  ground  that  there  is  a  continuing 
trespass,  and  therefore  a  new  taking  and  larceny  in 
every  jurisdiction  into  which  the  goods  are  brought. 
The  true  explanation  is  probably  an  historical  one. 

This  rule  has  never  been  applied  in  England  to  a 
taking  in  one  sovereignty  and  bringing  into  another. 
It  must  be  proved  both  that  the  goods  were  stolen 
and  that  the  thief  was  apprehended  within  the  juris- 
diction of  some  English  court.2 

In  this  country  the  courts  of  some  States  have 
applied  to  the  States  the  analogy  of  the  counties  of 
England,  rather  than  of  the  several  countries  under 
the  jurisdiction  of  the  English  sovereign.  So  it  has 
been  held  that  a  larceny  of  goods  in  one  jurisdiction 
is  a  larceny  in  every  jurisdiction  where  the  thief 
may  be  found  with  the  stolen  goods.3  But  in  other 
States  the  contrary  view  is  held,  it  would  seem  more 
correctly.4  And  an  indictment  against  a  receiver  of 
stolen  goods  alleged  to  have  been  stolen  in  Massa- 
chusetts was  upheld  upon  proof  that  the  goods  were 
stolen  in  New  York,  and  taken  by  a  New  York  re- 

1  1  Hale,  P.  C.  507,  508 ;  2  Hale,  P.  C.  163. 

2  Rex  v.  Prowes,  1  Moo.  C.  C.  349  ;  Regina  v.  Carr,  15  Cox  C.  C. 
131,  note. 

3  Com.  v.  Holder,  9  Gray  (Mass.)  7  ;  Com.  v.  Cullins,  1  Mass.  116  ; 
State  v.  Underwood,  49  Me.  181. 

4  Stanley  v.  State,  24  Ohio  St.  166,  where  the  cases  are  collected. 


04  CKIMINAX  LAW. 

ceiver  into  Massachusetts,  and  there  sold  to  the  in- 
dicted receiver,1  -a  decision  the  soundness  of  which 
cannot  be  said  to  be  free  from  doubt. 

It  has  even  been  held  in  Vermont  that  where  goods 
stolen  in  a  foreign  country,  as  for  instance  Canada, 
are  broughl  by  the  thief  into  one  of  the  States  of 
this  country,  he  may  here  be  indicted  for  larceny.2 
This  however  is  not  the  general  rule.3 

§  81.  Statutory  Jurisdiction  of  Crime.  —  The  question 
is  sometimes  raised  how  far  a  certain  jurisdiction 
has  power,  by  statutory  enactment,  to  punish  an  act 
committed  on  the  territory  of  another  jurisdiction. 
An  act  which,  though  done  outside  a  State,  yet  has 
a  disturbing  effect  on  the  people  of  the  State,  may 
doubtless  be  punished  by  statute.  Thus  a  State  may 
by  statute  punish  forgery  outside  the  State  of  a  deed 
to  land  within  it.4  There  is  more  doubt  whether  a 
State  has  power  by  statute  to  punish  homicide  when 
the  fatal  stroke  was  given  in  another  jurisdiction, 
but  the  death  occurred  within  the  jurisdiction  at- 
tempting to  punish  it.  In  Massachusetts  such  power 
has  been  held  to  exist;5  but  in  other  States  it  has 
been  denied.6 

§  82.  Jurisdiction  of  the  United  States  Courts.  — 
"Where  lands  within  the  territorial  limits  of  a 
State  are  ceded  to  the  United  States,  exclusive  legis- 
lative and  judicial  authority  is  vested  in  the  United 
States    government,    by  the    Constitution;    and  they 

1  Com.  v.  White,  123  Mass  4.10.  2  State  v.  Bartlett,  1 1  Vt.  C50. 

:;  Cmii.  o.  Oprichard,  3  (Jray  (Mass.)  434. 
«  Hanks  v.  State,  13  Tex.  App.  289. 
6  Com.  c  Macloon,  1<>1  Mass.  1. 

«  State  v.  Carter,  :>7  N.  J.  L.  (3  Dutch.)  499;  State  v.  Kelly,  76 
Me.  331. 


GENERAL  PRINCIPLES.  65 

may  exercise  it,  unless  the  State,  by  the  act  of  ces- 
sion, reserves  rights  inconsistent  with  the  exercise 
of  such  authority.1 

The  United  States  have  jurisdiction,  also,  over 
crimes  of  such  a  nature  that  they  interfere  with  the 
due  execution  of  the  laws  of  the  United  States ;  for 
instance,  over  embezzlement  of  pension  money,2  and 
fraudulent  voting  for  members  of  Congress.3  They 
have  jurisdiction  also  over  crimes  committed  against 
their  officers  in  the  course  of  their  duty,4  and  have  a 
certain  power  to  protect  from  the  criminal  process 
of  a  State  any  officer  who  is  indicted  for  an  act  done 
in  the  pursuance  of  his  duty.5 

§  83.  Concurrent  Jurisdiction.  —  The  same  act  — - 
counterfeiting,  for  instance  —  may  be  an  offence 
against  two  sovereignties,  and  punishable  by  both.6 
So  a  bank  officer,  under  the  national  bank  law  of  the 
United  States,  may  be  punished  by  the  United  States 
for  wilful  misappropriation  of  the  funds  of  the  bank, 
and  also,  under  the  common  law,  for  larceny,  or  for 
embezzlement,  if  the  statute  make  it  embezzlement, 
by  the  State  in  which  the  act  is  done.7  Doubtless, 
however,  a  prosecution  in  good  faith  by  one  govern- 
ment would  be  taken  into  consideration  by  the 
other. 8 

1  Mitchell  v.  Tibbetts,  17  Pick.  (Mass.)  298  ;  Wills  v.  State, 3  Heisk. 
(Tenn.)  141 ;  United  States  v.  Ward,  1  Wool.  C.  Ct.  17. 

2  United  States  v.  Hall,  98  U.  S.  343. 

3  In  re  Coy.  127  U.  S.  731. 

4  United  States  v.  Logan,  45  Fed.  Rep.  872. 

5  Tennessee  v.  Davis,  100  U.  S.  257 ;  In  re  Neagle,  135  U.  S.  1. 

6  Fox  v.  Ohio,  5  How.  (U.  S.)  410 ;  Phillips  v.  People,  55  111.  429 ; 
Moore  v.  Illinois,  14  How.  (U.  S.)  13. 

7  Com.  v.  Barry,  116  Mass.  1. 

8  United  States  v.  Amy,  14  Md   149. 

5 


66  CRIMINAL  LAW. 

§  s4.  Extradition. —  In  case  of  the  flight  of  a  crimi- 
nal from  the  jurisdiction  in  which  he  committed  the 
crime,  he  is  not  punishable  where  he  is  found,  for 
he  committed  no  crime  against  thai  sovereignty;  yet 
the  government  which  he  offended  cannol  arresl  and 
punish  him.  In  the  absence  of  compacl  between  the 
two  sovereignties  he  is  therefore  dispunishable.  He 
has,  however,  no  claim  to  impunity;  he  has  gained 
no  right  of  asylum,  ami  justice  will  be  furthered  if 
some  means  are  found  of  punishing  him.  This  can 
be  done  only  by  mutual  arrangement  between  the 
sovereignties,  that  is,  by  treaty.  The  process  of  ob- 
taining the  surrender  of  a  fugitive  from  justice  to 
the  sovereignty  whose  laws  he  has  broken  is  called 
extradition,  and  the  treaty  by  which  the  surrender  is 
guaranteed  an  extradition  treaty. 

§  8.">.  Foreign  Extradition.  —  The  surrender  of  fugi- 
tives from  justice  to  foreign  governments,  being  a 
matter  of  foreign  intercourse,  is  by  the  Constitution 
of  the  United  States  committed  to  the  Federal  gov- 
ernment exclusively;  it  is  therefore  unconstitutional 
for  a  State  to  surrenders  fugitive  to  a  foreign  gov- 
ernment under  any  circumstances.1 

An  application  for  extradition  under  a  treaty  is 
made  to  the  President  of  the  United  States,  who 
thereupon  issues  a  mandate,  directed  to  ;i  judge  or 
commissioner  of  the  United  States,  or  to  the  judge 
of  any  court  of  record  of  any  of  the  States.  Under 
this  mandate  a  complaint  is  made  by  the  representa- 
tive of  the  foreign  government  to  any  officer  named 
in  the  mandate,  and  a  warrant  of  arrest  is  thereupon 
issued,  and  the  accused  is  brought  before  the  court 
for  examination. 

i  Uuited  States  v.  Rauscher,  119  U.  S.  407. 


GENERAL  PRINCIPLES.  67 

This  examination  is  not  a  trial,  and  sufficient  evi- 
dence for  conviction  is  not  required.  The  accused 
may  testify  on  his  own  behalf,  and  the  evidence 
should  be  sufficient  to  justify  a  holding  for  trial  ac- 
cording to  the  law  of  the  forum.1  The  finding  is 
certified  to  the  Secretary  of  State,  and  thereupon  the 
President  issues  his  warrant  of  extradition.  He 
has,  however,  discretion  to  refuse  to  issue  the 
warrant. 2 

Any  error  of  law  in  the  extradition  proceedings 
may  be  reviewed  and  corrected  by  means  of  a  writ  of 
habeas  corpus,  which  will  lie  even  after  the  President 
has  issued  his  warrant.8  The  decision  of  the  com- 
missioner or  court  on  the  questions  of  fact  involved 
cannot,  however,  generally  be  reversed.  If  any  legal 
evidence  was  shown  which  would  justify  a  holding 
for  trial,  the  finding  on  questions  of  fact  is  final.4 

An  offender  brought  into  a  country  by  extradition 
proceedings  can  be  tried  only  for  the  offence  with 
which  he  was  charged,  until  a  reasonable  time  has 
been  given  him  to  return  to  the  country  from  which 
he  was  extradited.5 

Where  one  is  forcibly  abducted  in  a  foreign  coun- 
try and  brought  into  one  of  the  States  of  the  Union, 
and  there  tried,  no  federal  question  is  involved. 
The  extradition  treaties  do  not  guarantee  an  asylum 
in  the  foreign  country ;  and  the  kidnapper  therefore 
violated  only  the  laws  of  the  foreign  country,  not  of 

1  In  re  Farez,  7  Blatch.  C.  Ct.  345. 

2  In  re  Stupp,  12  Blatch.  C.  Ct.  501  ;  Spear  on  Extradition,  1st  ed. 
214. 

3  In  re  Earez.  7  Blatch  C.  Ct.  345. 

'    4  In  re  Oteiza,  136  U.  S  330;  Benson  v.  McMahon,  127  U.  S.  457. 
5  United  States  v.  Rauscher,  119  U.  S.  407. 


6g  CRIMINAL   LAW. 

the  United  States.  Whether  the  State  court  will 
try  ;in  offender  so  broughl  within  its  jurisdiction  is 
a  question  solely  for  the  State  to  determine;  bul  the 
better  view  appears  to  favor  the  right  of  the  State  to 

prosecute.  ' 

§  86.  Inter-state  Extradition. — The  Constitution  of 
the  United  States2  provides  lor  the  surrender  by  any 
Slate  of  fugitives  from  justice  from  another  State. 
This  makes  the  surrender  of  such  fugitives  the  abso- 
lute duty  of  the  State  in  which  they  have  taken 
refuge;  a  duty,  however,  which  must  he  left  to  the 
moral  sense  of  the  Executive  of  such  State,  since 
there  is  no  power  in  the  Federal  government  to  com- 
pel the  Executive  of  a  State  to  the  performance  of 
his  official  duty,  nor  to  indict  punishment  for  the 
ueglect  of  it.3  Extradition  may  he  had  under  the 
Constitution  for  anything  which  is  made  criminal 
by  the  laws  of  the  demanding  State,  though  it  was 
not  a  crime  when  the  Constitution  was  formed,  and 
is  not  a  crime  in  the  State  of  refuge.4 

Since  the  judicial  proceedings  of  one  State  are  to 
have  full  faith  and  credit  in  every  other,5  it  is  not 
necessary  to  institute  judicial  proceedings  in  the 
State  of  refuge;  the  proceedings  in  the  demanding 
State  are  enough.  Accordingly,  the  process  of  inter- 
state extradition  is  simpler  than  that  of  foreign  ex- 
tradition. The  procedure  is  established  by  act  of 
Congress.0     An  application  is  made  to  the  Governor 

1  Kor  v.  Illinois.  119  l\  S.  136,  I  It. 

2  Art.  4,  §  2. 

8  Kentucky  v.  Dennison,  24  How.  (II.  S.)  66. 
«  [bid 

6  Const.  U.  S.,  art.  4.  §  1. 

«  Stat.  1793,  c.  7,  §  1  ;  Kev.  St.  U.  S.  §  5273. 


GENERAL  PRINCIPLES.  69 

of  the  State  of  refuge  by  the  Governor  of  the  demand- 
ing State,  accompanied  by  a  copy,  certified  by  the 
Governor  to  be  authentic,  of  an  indictment  found,  or 
complaint  made  to  a  magistrate,  in  the  demanding 
State.  If  satisfied  that  the  accused  is  a  fugitive 
from  justice,  the  Governor  of  the  State  of  refuge  is- 
sues his  warrant  to  the  agent  of  the  demanding 
State,  who  thereupon  arrests  and  removes  the 
fugitive. 

The  question  of  the  guilt  of  the  accused  is  not  in 
issue.  It  is  enough  if  he  is  legally  charged  with 
crime,  according  to  the  law  of  the  demanding  State.1 
Whether  he  is  properly  charged,  the  indictment 
duly  certified  and  the  demand  legally  made,  is  a 
question  of  law,  reviewable  by  the  court  on  a  writ  of 
habeas  corpus.2 

The  question  whether  the  accused  is  a  fugitive 
from  justice  is,  hoAvever,  a  question  of  fact,  to  be 
decided  by  the  Governor  of  the  State  of  refuge.  His 
decision,  if  reviewable,  is  so  only  if  the  evidence  is 
utterly  insufficient  to  justify  a  finding  that  the  ac- 
cused is  a  fugitive.3  To  be  a  fugitive  from  justice,  it 
is  not  necessary  that  the  accused  should  have  left  a 
State  to  avoid  prosecution ;  it  is  enough  that,  having 
committed  a  crime,  he  left  that  jurisdiction,  and 
when  sought  for  prosecution  was  found  in  another,* 
even  though  when  found  he  was  in  the  State  of  his 
domicil.5     One  is  not  however  a  fugitive  from  jus- 

i  In  re  Clark,  9  Wend.  (N.  Y.)  212;  Wilcox  v.  Nolze,  34  Oh.  St. 
520;  Kingsbury's  Case,  106  Mass.  223. 
2  Robb  v.  Connolly,  111  U.  S.  624. 
8  Ex  parte  Reggel,  114  U.  S.  642. 
*  Roberts  v.  Reilly,  116  U.  S.  80,  97. 
6  Kingsbury's  Case,  106  Mass.  223. 


7Q  CRIMINAL  LAW. 

tice  who   did   not    leave   the   State   in   which  he   is 
found.      Thus,    where  one  commits  a  crime   in  an- 
other State  03  letter  or  by  innocenl   agent,  ah. 
remaining  in  the  State  of  his  domicil,  he  cannot   be 
extradited.1 

A  wan-ant  of  extradition  may  be  revoked  by  the 
Governor,  or  his  successor,  for  any  cause,  even  after 
the  accused  is  in  the  hands  of  the  agent  of  the  de- 
manding State.2 

There  is  much  controversy  upon  the  question 
whether  an  offender  who  has  been  extradited  for  one 
offence  may  be  tried  for  another.  The  weight  of 
authority  seems  to  be  that  this  is  allowable,  provided 
the  extradition  was  procured  in  good  faith,  and  the 
offence  for  which  the  tidal  is  had  is  one  tor  which 
the  offender  might  have  been  extradited.3  Many  re- 
spectable authorities,  however,  hold  that  an  offender 
can  lie  tried  only  upon  the  indictment  on  which 
he  was  extradited,  until  he  has  had  an  opportunity 
to  return  to  the  State  of  refuge.4 

1  Jones  v   Leonard, 50  Iowa,  106 ;  Hartman  v  A.veline,63  [nd.344; 

/  i    •    Mohr,  ::\  Ala.  503. 

2  Work  v  Corrington,  34  Oh.  St.  G4. 
a  State  v.  Stewart,  60  Wis   587. 

4  State  v.  Hall,  40  Kan.  :s:i8;  In  re  Cannon,  47  .Mich.  481. 


OF  CRIMINAL  PROCEDURE.  71 


CHAPTER  II. 


OP    CRIMINAL    PROCEDURE. 


§  87.  Process  of  a  Criminal  Pros- 
ecution. 
98.  Criminal  Pleading.  —The  In- 
dictment. 


§111.  Joinder  of  Counts  and  Of- 
fences. 
117.  Double  Jeopardy. 
124.  Evidence  in  Criminal  Cases. 


PROCESS    OF    A    CRIMINAL    PROSECUTION. 

§  87.  Arrest.  — The  first  step  in  a  criminal  suit  is 
generally  the  arrest  of  the  accused.  This  is  ordina- 
rily accomplished  by  means  of  a  warrant,  issued  by 
a  magistrate  upon  a  complaint  under  oath.  The 
warrant  is  thereupon  executed  by  the  proper  official. 
In  making  the  arrest,  the  officer  may  use  all  neces- 
sary force.  He  may  after  request  break  down  the 
door  even  of  a  third  party,  upon  reasonable  belief 
that  he  will  find  the  accused  there ; 1  especially  if 
the  accused  has  been  lawfully  arrested,  and  has 
escaped.2 

The  officer  must  be  prepared  to  show  his  warrant 
on  demand ; 3  though  he  need  not  show  it,  if  the  ac- 
cused or  the  owner  of  the  house  into  which  he  comes 
has  seasonable  notice  that  he  is  an  officer  acting 
under  a  warrant.4 

1  Com.  v.  Reynolds,  120  Mass.  190;  2  Hale  P.  C.  117. 

2  Cahill  v.  People,  106  111.  621 ;  Com.  v.  McGahey,  11  Gray  (Mass.) 
194. 

3  Codd  v.  Cabe,  1  Ex.  Div.  352. 

4  Com.  v.  Irwin,  1  All.  (Mass.)  587. 


72  CRIMINAL   LAW. 

§  88.  Arrest  without  Warrant  — Under  certain  cir- 
cumstances an  arrest  may  be  made  at  once,  without 
first  obtaining  a  warrant.  A  private  person  is  justi- 
fied in  making  an  arrest  only  if  felony  has  been  com- 
mitted; but  an  officer  may  arrest  upon  reasonable 
suspicion  of  felony,  or  for  a  breach  of  the  peace 
committed  in  his  view.1  The  power  of  an  officer  to 
break  down  doors,  and  to  use  all  necessary  force, 
would  seem  to  be  equally  great,  if  he  is  justified  in 
making  an  arrest,  whether  he  has  or  has  nol  a  war- 
rant; but  a  private  prison  can  break  down  doors 
only  while  following  a  felon  on   fresh   pursuit.3 

§  89.  Commitment.  —  After  being  arrested,  whether 
with  or  without  a  warrant,  the  prisoner  must  be 
taken  before  the  proper  court  or  magistrate  as  soon 
as  possible;2  and  meanwhile  he  is  in  the  custody  of 
the  officer  who  arrested  him.  His  personal  property 
cannot  be  interfered  with  except  that  any  article 
which  might  prove  the  crime,  or  which  is  described 
in  the  complaint  as  stolen,  may  be  taken  and  pre- 
served till  the  trial.3  But  a  watch  or  money  belong- 
ing to  the  prisoner  must  be  left  in  his  possession.4 

When  the  prisoner  is  brought  before  the  court  or 
magistrate,  he  is  entitled  to  a  speedy  investigation 
of  the  charge  againsl  him.  if  the  crime  is  one  with- 
in the  jurisdiction  of  the  judge,  an  immediate  trial 
may  he  had.  If,  however,  the  prisoner  must  be  tried 
in  a  court  of  higher  jurisdiction,  evidence  is  intro- 

1  4  Bl.  Com.  292. 

2  Tubba  <■-  Tukey,  3  Cosh   (Maas.)  438. 

3  Houghton  e.  Bachman,  47  Barb  (N.  Y.)  388;  Rex  v.  Burgiss,  7 
C  &  P.  488. 

*  Rex  v.  Kinsey,  7  C.  &  P.  447 ;  Rex  v  O'Donnell,  7  C.  &  P.  138. 


OF   CRIMINAL   PROCEDURE.  73 

duced  only  for  the  purpose  of  proving  a  prima  facie 
case;  and  if  that  is  found,  the  prisoner  is  committed 
to  await  further  proceedings. 

The  commitment  is  either  to  jail  or  to  bail.  Every 
prisoner  must  at  common  law  be  allowed  bail  upon 
a  commitment,  unless  he  is  charged  with  a  capital 
crime.1 

§  90.  Accusation.  —  The  formal  accusation  of  the 
accused  may  be  made  in  three  ways :  by  indictment, 
by  information,  or  by  complaint.  A  complaint  is 
an  accusation  by  a  private  person,  under  oath,  and 
is  generally  allowed  only  in  case  of  small  misde- 
meanors. An  information  is  an  accusation  by  the 
Attorney  General  under  his  own  oath.  This  is  not 
a  common  form  of  procedure,  except  in  a  few  States 
of  the  Union.  The  common  form  of  accusation  is 
by  indictment,  which  is  found  by  the  grand  jury  upon 
its  oath. 

An  indictment  may  be  found  against  one  who  has 
already  been  arrested  and  committed,  or  against  one 
who  is  still  at  large ;  in  the  latter  case,  a  warrant  for 
arrest  issues  at  once  on  the  indictment  being  found, 
and  is  served  in  the  same  way  as  a  warrant  issued 
on  complaint  under  oath. 

§  91.  Grand  Jury. — The  grand  jury  is  a  jury  of  at 
least  twelve  men,  and  of  no  more  than  twenty-three ; 
a  majority  of  the  jury,  and  at  least  twelve  jurors, 
must  join  in  finding  a  true  bill.2 

Upon  assembling,  the  jury  is  charged  by  the  court, 
and  then  retires  for  consultation.  No  one  may  be 
present  at  its  deliberations  except  the  witnesses,  and, 

1  4  Bl.  Com.  296. 

2  Clyncard's  Case,  Cro.  Eliz.  654. 


74  CRIMINAL   LAW. 

in  this  country,  the  public  prosecuting  attorney.1 
The  jury  chooses  a  foreman,  and  then  proceeds  to 
consider  the  matters  that  may  come  before  it. 

The  grand  jury  can  act  only  upon  certain  lines. 
Its  chief  duty  is  to  consider  and  pass  upon  the  bills, 
that  is,  the  formal  written  charges  of  crime,  prepared 
by  the  prosecuting  attorney.  Such  bills  being  pre- 
sented to  it,  the  evidence  in  support  of  the  prosi  cu- 
tion  is  heard.  It  is  the  duty  of  the  prosecuting 
attorney  to  see  thai  none  hut  Legal  evidence  is  al- 
lowed to  go  to  the  grand  jury.  lie  may  open  the 
ease,  but  must  take  no  part  in  the  discussion,  and 
express  no  opinion.  If  twelve  jurors  find  thai  there 
is  reasonable  cause  for  believing  the  charge  stated 
in  a  bill  to  be  a  true  one,  the  words  "true  bill  "  are 
indorsed  upon  it,  and  certified  by  the  foreman;  and 
at  the  end  of  the  jury's  sitting  the  foreman  hands 
all  '"true  bills"  to  the  clerk.  Bills  so  indorsed  and 
presented  to  the  court  are  called  indictments.  As 
an  indictment  cannot  be  found  originally  except  by 
tin'  grand  jury,  so  it  can  he  amended  only  by  that 
body. 

Besides  the  bills  prepared  by  tin1  prosecuting  at- 
torney for  the  consideration  of  the  grand  jury,  it  may 
inquire  into  certain  other  matters:  namely,  matters 
called  to  its  attention  by  the  court,  or  such  public 
offences  as  come  to  lighl  while  it  is  considering 
other  matters,  or  as  may  have  come  to  the  knowledge 
of  individual  jurors.3  If  upon  inquiry  these  matters 
seem  to  require  prosecution,  the  grand  jury  states 
them  in  the  form  of  a  presentment,  and  it  is  there- 

i   McCullough  v   Com.,  67  Pa.  .'50. 
-  Ibid. 


OF  CRIMINAL  PROCEDURE.  75 

upon  the  duty  of  the  prosecuting  attorney  to  frame 
an  indictment  for  the  crime  thus  presented. 

§  92.  Arraignment  and  Pleading.  —  An  indictment 
having  been  found,  the  prisoner  must  be  set  at  the 
bar  of  the  court ;  it  is  then  read  to  him,  and  he  is 
required  to  answer  to  it.  This  is  called  the  arraign- 
ment. Except  in  the  case  of  small  misdemeanors, 
where  the  punishment  is  only  by  fine,  the  prisoner 
must  be  personally  at  the  bar  to  plead. 

If  the  prisoner  would  not  plead,  but  stood  mute,  it 
was  formerly  necessary  to  empanel  a  jury  and  find 
whether  the  prisoner  stood  mute  by  visitation  of 
God,1  and  if  not,  to  compel  the  prisoner  to  plead  by 
the  use  of  force,2  at  least  in  cnse  of  felony.  Now, 
however,  the  plea  of  not  guilty  is  everywhere  entered, 
by  statute,  in  such  a  i 

§  93.  Trial  and  Verdict.  —  If  the  prisoner  pleads  not 
guilty,  an  issue  is  joined,  and  must  he  tried  by  a 
jury.  The  prisoner  must  be  present  during  the  trial; 
a  privilege,  however,  which  he  may  waive,  except  in 
capital  cases.  If  there  is  no  such  waiver,  the  jury 
must  be  empanelled,  and  the  evidence,  charge,  and 
verdict  must  be  given,  in  the  presi  nee  of  the  pris- 
oner. Motions  may,  however,  be  made  and  argued 
by  counsel  in  his  absence.  If  the  prisoner  pleads 
guilty,  or  nolo  contendere,  no  issue  is  joined,  and 
there  is  therefore  no  trial;  and  sentence  may  be  at 
once  imposed. 

The  prisoner  may  be  convicted  not  merely  of  the 
offence  with  which  he  is  charged,  but  of  any  lesser 
offence  that  can  be  carved  out  of  his  indictment. 

1  State  v.  Doherty,  2  Overton  (Tenn.)  80. 

2  1  Steph.  Hist.  Cr.  Law,  297. 


70  CRIMINAL   LAW. 

A.t  common  law,  however,  he  cannot,  on  an  indict- 
ment for  felony,  be  convicted  of  a  misdemeanor;  but 
this  has  been  generally  changed  by  statute 

§  94.  Nolle  Prosequi  and  Quashing.  —  The  prosecut- 
ing attorney  may,  in  bis  discretion,  put  an  end  to 
the  prosecution  of  an  indictment  by  entering  a  nolle 
prosequi.  This  can  be  done  in  some  States  only  by 
consenl  of  the  court. 

h  the  indictment  is  defective,  it  may  be  quashed 
on  motion  of  either  parly,  or  by  the  court  on  its  own 
motion.  An  indictment  may  be  quashed  at  any 
stage  of  the  prosecution  if  it  is  apparent  on  the  lace 
of  it  that  no  judgment  upon  it  could  be  supported. 
For  certain  formal  defects,  however,  an  indictment 
can  be  quashed  only  before  plea. 

§  95.  Benefit  of  Clergy  was  an  old  common  law 
right  which  the  clergy  had,  when  they  wwr  charged 
■with  crime,  of  having  their  causes  transferred  to  the 
ecclesiastical  tribunals,  or,  after  conviction,  of  plead- 
ing certain  statutes  in  mitigation  of  sentence.  Of 
its  specific  character  and  its  limitations  it  is  not 
proposed  to  speak,  as  it  is  doubtful  if  it  is  a  right 
which  can  now  be  successfully  asserted  in  any  State 
of  the  Union.1 

§96.  Sentence. — The  only  remaining  step  in  a 
criminal  prosecution  is  the  judgmenl  and  sentence 
of  til-  court.  The  defendant  should  be  sentenced 
in  presence  of  the  court:  but  this  is  a  privilege  he 
may  ordinarily  waive.  In  case  of  capital  crimes, 
however,  the  prisoner  must  be  present,  in  order  that 
be  may  state  any  reason  why  sentence  should  not  be 

1  So-  Eor  these  particulars  l  Bish.  Cr.  Law,  §  38,  ami  the  authorities 
by  him  cited. 


OF  CRIMINAL  PROCEDURE.  77 

passed  upon  him.  This  is  a  matter  of  great  impor- 
tance to  the  State  itself,  which  is  interested  in  pre- 
serving the  lives  of  its  citizens ;  and  the  prisoner  is 
therefore  not  allowed  to  waive  the  privilege. 

§  97.  Pardon.  —  The  executive  branch  of  the  gov- 
ernment has  power  to  pardon  an  offence,  —  a  power 
which  is  defined  and  regulated  in  most  of  our  con- 
stitutions. In  the  absence  of  constitutional  limita- 
tion, a  pardon  may  be  granted  at  any  time  after  an 
offence  has  been  committed,  whether  or  not  prosecu- 
tion has  begun.  The  effect  of  a  pardon  is  to  remove 
all  the  consequences  of  a  crime,  not  merely  to  remit 
the  sentence.1 

A  pardon  may  be  conditional ;  as  that  the  offender 
will  permanently  leave  the  country,  or  will  submit 
to  a  lesser  punishment.  In  this  case,  if  the  offender 
breaks  the  condition  the  original  sentence  may  be 
enforced.2  This  may  be  done  by  immediate  arrest 
and  return  to  prison ; 3  though  in  Michigan  it  is  held 
that  one  accused  of  violating  the  condition  of  his 
pardon  is  entitled  to  a  trial.* 

A  temporary  stay  of  execution  of  the  sentence  is 
called  a  reprieve.5 

CRIMINAL    PLEADING.  THE    INDICTMENT. 

§  98.  Requisites  of  Indictment.  —  The  indictment  is 
the  formal  charge  upon  which  the  entire  suit  is 
based ;  and  it  must  set  forth  the  crime  of  which  the 
defendant  is    accused   fully,    plainly,    substantially, 

1  4B1.  Com.  401. 

2  1  Bish.  Crim.  Law,  7th  ed.  §  914. 

3  State  v.  Barnes,  32  S.  C.  14. 

4  People  v.  Moore,  62  Mich.  496. 
8  4  Bl.  Com.  394. 


78  CRIMINAL  LAW. 

and  formally.1  11  Bhould  contain  a  d<  scription  of  the 
facts  which  constitute  the  crime,  withoul  ambiguity 
or  inconsistency;  and  excepl  where,  as  in  indict- 
ments for  felony,  certain  formal  words,  such  as 
feloniously,  burglariously,  with  malice  aforethought, 
etc.,  must  be  used,2  the  language  may  be  such  as 
is  ordinarily  used  and  understood;  so  long  as  the 
meaning  is  clear  and  unambiguous,  the  language  is 
immaterial.8 

Since  judgmenl  must  be  given  on  the  indictment, 
this  must  state  facts  which  are  incompatible  with 
the  innocence  of  the  accused.  It  it  is  capable  of  a 
meaning  which  would  nol  necessarily  import  a  crime 
it  is  insufficient,4  and  nun  be  attacked  on  this  ground 
by  demurrer. 

Two  and  sometimes  three  sets  of  allegations  are 
necessary  to  complete  a  charge  of  crime.  It  must 
first  he  shown  whal  right  the  prosecuting  governmi  u1 
has  to  complain;  that  is,  an  obligation  toward  the 
government  must  be  shown  to  have  hem  infringed. 
For  this  purpose,  it  is  ordinarily  enough  to  show 
that  the  act  was  committed  within  the  jurisdiction 
of  the  government  prosecuting.  If  the  crime  is  one 
against  the  property  of  an  individual,  the  existence 
of  this  individual  righl  must  also  be  alleged  in 
addition  to  the  public  right.  The  righl  or  rights 
having  thus  been  set  up,  an  infringenn  n1  by  the 
accused  must   finally  be  charged. 

When-  an   indictment    is  made  up  of  two  or  more 

i   M.-ks.  Bill  of  Rights,  art.  12;  Com.  v.  Davis,  11  Tick.  (Mass.)  432 

2  2  Hawk.  P.  C,  C.  25,  § 

3  King  '•.  Stevens,  5  East,  244,  259. 

*  Com.  v.  Grey.  2  Gray  (Mass.)  501. 


OF  CRIMINAL  PROCEDURE.  79 

distinct  charges  of  crime,  each  charge  is  called  a 
count  of  the  indictment.  Every  count  must  in 
itself,  without  reference  to  the  others,  be  sufficient 
as  an  indictment. 

§  99.  Elements  of  Crime.  —  The  indictment  must 
contain  all  the  elements  of  the  crime  charged.  Thus, 
where  a  specific  intent  is  one  element  of  a  crime, 
this  intent  must  be  alleged  in  the  indictment.1  So 
where  the  punishment  is  greater  for  a  second  offence, 
a  former  conviction  must  be  alleged  in  the  indict- 
ment in  order  to  justify  the  infliction  of  the  greater 
punishment.2 

§100.  Particularity.  —  The  particularity  which  is 
necessary  in  framing  an  indictment  is  governed  by 
the  rights  of  the  accused.  Any  one  accused  of  crime 
has  a  right  to  be  informed  of  the  charge  against  him, 
so  as  to  prepare  for  his  defence.  He  has  a  right  also 
to  have  the  record  so  full  that  he  may  avail  himself 
of  the  proceedings  if  he  is  again  prosecuted  for  the 
same  acts.  There  are  therefore  two  tests  of  the 
particularity  of  an  indictment:  first,  does  it  furnish 
sufficient  information  and  particulars  to  enable  the 
accused  properly  to  prepare  his  defence;  secondly, 
is  it  sufficiently  precise  to  protect  him  from  a  second 
prosecution.3 

§101.  Surplusage.  —  Where  allegations  are  made 
in  the  indictment  which  are  unnecessary  to  the 
offence  charged,  they  may  be  treated  as  surplusage ; 

1  Com.  v.  Shaw,  7  Met.  (Mass.)  52. 

2  Larney  v.  Cleveland,  34  Oh.  St.  599;  Com.  v.  Harrington,  130 
Mass  35. 

3  Com.  u.  Ramsey,  1  Brewst.  (Pa.)  422;  Fink  v.  Milwaukee,  17 
Wis.  26. 


80 


CRIMINAL    LAW. 


and  so  long  as  the  offence  is  sufficiently  described 
without  them,  they  may  be  neglected,  and  a  failure 
to  prove  them  will  not  prevent  a  conviction. 

It  is  very  different,  however,  when  a  material  al- 
legation is  made  unnecessarily  precise,1  as  when  a 
horse  is  described  as  white,  or  a  person  is  alleged  to 
be  a  resident  of  a  certain  place.  For  in  preparing 
his  defence  the  accused,  knowing  that  the  allegation 
must  be  proved,  would  prepare  to  meet  it  as  it  was 
made,  and,  if  he  could  prove  it  untrue,  would  be  jus- 
tified in  resting  his  case.  Therefore,  where  an  in- 
dictment alleges  that  the  accused  suborned  J.  S.  of 
\Y.  to  commit  perjury,  it  is  not  proved  by  showing 
that  he  suborned  J.  S.  of  X.  ;  though  the  indict- 
ment would  have  been  sufficient  if  it  had  not  alleged 
the  residence  of  J.  S.2  So  where  the  indictmenl 
describes  the  special  marks  on  timber  alleged  to 
have  been  stolen,  these  marks  must  be  proved;3  and 
where  a  burial-ground  alleged  to  have  been  dese- 
crated is  described  in  the  indictment  by  metes  and 
bounds,  the  description  must  be  proved.4  And  m 
like  manner,  where  a  woman  is  unnecessarily  de- 
scribed as  a  widow,  she  must  be  proved  to  be  a 
widow.5 

§  102.  Jurisdiction  and  Venue.  —  As  lias  been  seen, 
facts  must  be  stated  which  show  the  right  of  the 
court  to  try  and  punish;  that  is.  there  must  be  an 
allegation  of  jurisdiction  on  the  part  of  the  sover- 

i  Shearm  v.  Human!.  M>  A.  &  E.  593,  5%. 

2  Cum.  v.  Stone,  152  Mass.  498. 

:;  State  v.  Noble   15  Me  476. 

*  Com  v  Wellington,  7  All.  (Mass.)  299. 

6  Kcx  v  Deeley,  l  Moo.  C.  C.  303. 


OF  CRIMINAL  PROCEDURE.  81 

eignty  prosecuting.  This  is  ordinarily  done  by 
alleging  that  the  act  was  against  the  peace  of  that 
sovereignty.  If,  however,  one  sovereignty  succeeds 
another, —  as  happened  for  instance  where  the  State 
of  Maine  was  separated  from  Massachusetts, —  an  act 
committed  before  the  change,  but  prosecuted  after  it, 
must  be  alleged  to  have  been  against  the  peace  of  the 
former  government.1 

Not  only  must  there  be  an  allegation  of  jurisdic- 
tion on  the  part  of  the  State ;  jurisdiction  over  the 
crime  must  also  be  shown  on  the  part  of  the  court  in 
which  the  indictment  is  found.  This  is  done  by 
laying  the  venue  oi  the  crime  within  the  county  or 
other  district  over  which  the  court  has  jurisdiction. 
It  is  generally  provided  that  a  crime  committed 
within  a  certain  distance  of  the  boundary  of  two 
counties  may  be  tried  in  either  county.  In  such  a 
case,  in  order  to  show  jurisdiction  on  the  record,  the 
act  must  be  alleged  to  have  been  committed  in  that 
county  in  which  the  court  is  sitting.2 

§  103.  Names. — The  indictment  must  contain  the 
name  of  the  accused,  and  of  any  one  whose  person 
or  property  he  is  charged  with  having  injured. 
These  names  must  be  absolutely  correct;  otherwise, 
if  the  accused  were  a  second  time  prosecuted,  he 
could  not  avail  himself  of  the  former  judgment. 
Therefore  the  transposition  of  two  Christian  names,3 
or  the  omission  of  one,4  is  a  fatal  misnomer. 

Not  every  slight  error  in  a  name  is  however  fatal. 

i  Damon's  Case,  6  Me.  148. 
2  Com.  v.  Gillon,  2  All.  (Mass.)  502. 
8  Queen  v.  James,  2  Cox  C.  C.  227. 
4  Com.  v.  Perkins,  1  Pick.  (Mass.)  388. 
6 


go  CRIMINAL   LAW. 

The  important  question  is,  whether  it  would  be  im- 
possible to  doubt  the  identity;  and  if  the  name  as 
written  sounds  the  Bame  as  the  true  name,  or,  in 
technical  language,  it'  the  two  are  idem  sonantia,  the 
indictment  is  sufficient.  Tims  in  an  indictment  for 
forging  the  name  McNicole,  a  forgery  of  the  name 
McNicoll  may  be  shown.1  The  question  whether 
two  names  are  idem  sonantia  is  tor  the  jury.2 

If  the  name  of  the  injured  person  is  unknown  to 
the  grand  jury,  it  may  be  so  stated,  and  the  indict- 
ment is  sufficient;  (hough  if  this  is  done  and  it 
transpires  that  the  name  was  known,  the  allegation 
is  bad.3  There  is  more  difficulty  where  the  accused 
refuses  to  give  his  name  In  such  a  case  he  should 
be  described  in  the  indictment  as  a  person  whose 
name  is  unknown,  but  who  was  personally  brought 
before  the  jurors  by  the  keeper  of  the  jail.4 

If  our  is  described  by  a  name  by  which  he  is  actu- 
ally known,  if  is  sufficient,  though  it  is  not  his  true 
name.5  [f  however  a  person  is  known  by  two  names, 
the  ordinary  and  safer  course  is  for  both  to  be  al- 
leged :   as,  John  Jones,  alias  John  Smith. 

A  ariance  in  the  name  of  a  person  other  than  the 
defendant  is  fatal,  and  entitles  the  defendant  to  nn 
acquittal  on  the  indictment.  A  variance  in  the 
name  of  the  defendant  is  not,  however,  a  fatal  de- 
fect, since  the  fact  tried  is  the  guilt  of  the  prisoner 

1  Queen  v.  Wilson,  2  Cox  C  C.  i2f. 

in.  v.  Donovan,  13  All.  (Mass.)  571. 

in.  v.  Morse,  14  Mass.  217. 

*  Rex  '•. .  Russ.  S  Ry.  189 

5  Com.  v.  Desmartean,  16  Gray  (Mass.)  1, 17;  Rex  v.  Norton, Rubs. 
&  Ry.  510. 


OF   CRIMINAL  PROCEDURE.  83 

actually  at  the  bar.  In  order  to  avail  himself  of 
such  a  defect,  the  defendant  must  plead  the  mis- 
nomer in  abatement.1 

§  104.  Time.  —  It  is  necessary  that  the  time  of  the 
offence  should  be  alleged  in  the  indictment;  but  it 
is  not  generally  necessary  to  prove  the  time  as  laid. 
It  is  enough  if  some  time  is  proved  before  the  date 
of  the  indictment,  and  within  the  period  set  by  the 
statute  of  limitations.2  The  time  of  a  continuing 
offence  may  be  charged  on  a  certain  day,  and  con- 
tinuing from  that  day  to  the  day  of  receiving  the 
complaint.3 

If  however  time  is  material,  it  must  be  accurately 
stated;  for  instance,  where  the  crime  is  against  a 
Sunday  law,4  or  where  it  is  part  of  the  description, 
as  the  date  of  a  newspaper  in  which  a  libel  was  pub- 
lished.5 And  so  where  the  punishment  of  an  offence 
is  changed  by  statute,  one  cannot,  on  an  indictment 
laying  the  offence  before  the  new  statute,  be  con- 
victed of  an  offence  after  it.6  So  the  time  laid  must 
not  be  impossible  or  absurd;  as,  for  instance,  a  time 
later  than  the  complaint  or  indictment,7  or  a  time 
before  the  period  of  limitation. 

§  105.  Place.  —  As  has  been  seen,  the  place  of  the 
offence  must  be  stated,  in  order  to  show  the  venue 
of  the  court.  It  is  not,  however,  generally  neces- 
sary to  prove  the  place   precisely  as  alleged;   any 

1  Turns  v.  Com.,  6  Met.  (Mass.)  224,  2.35. 

2  People  v.  Stocking.  50  Barb.  (N.  Y.)  573. 
8  Com.  v.  Frates,  16  Gray  (Mass.)  236. 

4  State  v.  Caverly,  51  X.  II  446. 

6  Com.  v.  Varney,  10  Cash.  (Mass.)  402. 

6  Com.  v.  Maloney,  112  Mass  283. 

7  Com.  v.  Doyle,  110  Mass.  103. 


84  CRIMINAL   LAW. 

place  may  be  proved  which  is  within  the  venue  of 
the  court.1 

If  however  the  place  is  material,  as,  for  instance, 
in  the  case  of  burglary,  the  place  must  be  alleged 
and  proved  with  the  greatest  accuracy.2  And  so  in 
every  case  where  the  act  is  local;  such  as  maintain- 
ing a  nuisance.3  The  place  is  also  material  when 
an  act  is  a  crime  only  when  committed  in  a  certain 
place,  as  within  ten  feet  of  the  highway. 

Every  act  alleged  in  the  indictment  must  be  laid 
at  a  certain  time  and  place.  When  the  nets  were 
simultaneous,  the  ordinary  method  is  to  allege  that 
they  were  done  then  and  there.  This  form  of  words 
is  not  necessary;  but  such  Language  must  be  used  as 
will  state  some  time  with  absolute  certainty.4 

§  10G.  Description.  —  A  sufficient  description  must 
be  given  of  everything  as  to  which  ;i  material  allega- 
tion is  made  in  the  indictment.  Thus,  all  property 
must  be  described  as  owned  by  some  one,  either  the 
general  or  the  special  owner.5  The  name  ordinarily 
used  to  describe  a  thing  is  sufficient  ;  but  if  it  is 
ordinarily  known  by  a  specific  name,  it  is  nol  enough 
to  describe  it  by  the  name  of  the  material  of  which 
it  is  made.  For  instance,  an  ingot  of  tin  or  a  bar  of 
iron  may  be  described  as  tin  or  iron,  but  cloth 
must  be  called  cloth,  not  wool;  and  a  coin  or  a  cup 
must  be  so  described,  and  not  as  such  a  weight  of 
silver.6 

1  Com.  r.  Tollivor.  8  Gray  (Mass.)  386. 

2  Rex  v.  Napper,  l  Moo  C.  C  44. 

8  Cum    v.  Heffron,  102  Mass    148. 

4  Arch.  Crim.  Plead.,  19th  ed.  51. 

6  Com.  !•.  Morse,  i  i  Mass.  217. 

6  Hegiua  v.  Mansfield,  Car.  &  M.  140. 


OF   CRIMINAL  PROCEDURE.  85 

§  107.  Words.  —  Whenever  an  offence  consists  of 
words  written  or  spoken,  those  words  must  be  stated 
in  the  indictment  with  exactness ;  any  omission  is 
a  defect  of  substance.1  A  mere  literal  variance, 
however,  which  does  not  affect  the  meaning,  is  not 
fatal ;  such,  for  instance,  as  the  misspelling  of  a 
name,  where  the  two  forms  are  idem  sonantia. 

Where  the  words  are  obscene,  it  is  held  in  this 
country  that  they  need  not  be  spread  upon  the 
records;  it  is  enough  to  describe  them  in  general 
terms,  and  explain  the  reason  of  omitting  them.2  In 
England,  however,  this  is  not  allowed.3 

The  rule  applies  to  spoken  as  well  as  to  written 
words,  where  they  are  the  gist  of  the  offence.  But 
where  words  complained  of  are  not  the  gist  of  the 
offence  but  only  the  means  of  committing  it,  as  in 
the  case  of  a  prosecution  for  threats,  they  need  not 
be  set  out  with  technical  accuracy.4 

§  108.  Contracts  and  Written  Instruments.  —  When  it 
is  material  in  the  course  of  an  indictment  to  allege 
the  making  or  the  existence  of  a  contract,  or  of  any 
written  instrument,  the  writing  or  the  contract  must 
be  set  out  exactly ;  and  if  it  is  an  instrument  that 
has  a  specific  name,  that  name  must  be  given  to 
it,  otherwise  the  indictment  is  repugnant,  and  fatally 
defective.6 

§  109.  Indictments  upon  Statutes.  —  Where  an  in- 
dictment is  brought  for  breach  of  a  criminal  statute, 

1  Bradlaugh  v.  Queen,  3  Q.  B  Div.  607,  616,  617. 

*  Com  v.  Holmes,  17  Mass.  336 

8  Bradlaugh  ?>.  Queen,  3  Q.  B.  Div  616. 

4  Com.  v.  Murphy,  12  All.  (Mass.)  449  ;  Cora.  v.  Goodwin,  122  Mass. 
19,  33. 

5  Com.  v.  Lawless,  101  Mass.  32. 


86  CRIMINAL   LAW. 

it  must  conclude  with  the  allegation  thai  the  act 
was  againsi  the  form  of  the  statute  (contra  formam 
statuti)  in  thai  case  made  and  provided.1  If  the  in- 
dictment stairs  a  «■■ mimon  law  crime,  the  allegation 
that  it  is  contra  formam  statuti  may  be  rejected  as 
surplusage.2  It  is  therefore  always  safe  to  conclude 
with  that  allegation. 

Where  the  enacting  clause  of  a  criminal  statute 
describes  the  offence  and  makes  certain  exceptions, 
it  is  necessary  in  the  indictment  to  negative  the  ex- 
ceptions; but  where  exceptions  are  contained  in  a 
separate  clause  or  proviso,  they  need  not  be  men- 
tioned   in    tin1    indictment.3 

It  is  not  always  sufficienl  for  the  indictmenl  to 
follow  the  language  of  the  statute.  As  has  been 
seen,  the  statute  must  be  interpreted  with  relation  to 
the  common  law;  and  may  omit  certain  (dements  of 
the  crime  which  the  common  law  supplies.4  A.gain, 
a  certain  specific  intent  is  sometimes  required  in 
statutory  crimes,  though  not  mentioned  in  the  statute. 
This  intent  must  be  alleged  in  the  indictment.  So 
where  a  statute  forbade  the  removal  of  a  human  body 
from  a  grave,  this  was  held  to  mean  a  removal  for 
purposes  of  dissection,  and  that  purpose  must  be  al- 
leged in  the  indictment;6  ami  an  indictment  for 
keeping  open  shop  on  the  Lord's  day  iiium    allege 

that    the    shop    was    kept    open    for    business.6 

1  Com.  v.  Springfield,  7  Ma<s  0. 

2  Com.  v  Reynolds,  l  t  Graj  (Mass  )  ^7 

»  United  States  v  Cook,17WalJ  (U  S.)168;  Beasley  v  People,89 
111.  r.7i  ,  Jefferson  v.  People,  101  N.  Y.  19,  Com  v.  Maxwell,  2  Pick. 
(Mass  i  139 

«  United  States  v,  Carll,  105  D  S  611, 

5  Com    r.  Slack,  19  Pick    (Mass.)  304. 

6  Com.  v.  Collins,  2  (usli.  (Mass.)  556. 


OF  CRIMINAL  PROCEDURE.  87 

In  many  cases  statutes  have  been  framed  with  the 
evident  purpose  of  extending  to  the  realty  that  pro- 
tection which  the  common  criminal  law  extended  to 
personalty.  In  these  cases  the  indictment  must 
show  that  the  property  alleged  to  have  been  inter- 
fered with  was  part  of  the  realty.  Thus,  an  indict- 
ment upon  a  statute  forbidding  the  removal  of  gravel 
from  land  must  allege  that  the  gravel  was  part  of 
the  realty;1  and  where  the  statute  forbids  the  mali- 
cious destruction  of  glass  in  a  building,  the  indict- 
ment must  allege  that  the  glass  was  part  of  the 
building.2 

§  110.  Statutory  Forms  of  Indictment.  —  The  legisla- 
ture often  prescribes  a  shortened  and  simplified  form 
of  indictment;  and  such  action  is  often  salutary, 
especially  in  the  case  of  indictments  for  felony, 
where  much  useless  verbiage  has  become  or  has 
seemed  to  be  necessary.  But  care  must  be  used  that 
in  shortening  the  form  of  indictment  no  necessary 
allegations  are  omitted;  for,  at  least  under  our  Con- 
stitutions, an  indictment,  though  authorized  by  stat- 
ute, is  bad  if  every  necessary  element  of  crime  is 
not  stated  in  it.  Thus,  a  statutory  form  of  indict- 
ment is  unconstitutional  if  it  omits  the  allegation 
of  a  specific  intent,3  or  if  it  charges  the  defend- 
ant with  perjury  before  a  certain  court  without 
alleging  in  what  respect  he  swore  falsely.4  So 
it  is  unconstitutional  to  provide  that  one  may  be 
more  heavily  punished  for  a  second  offence,  though 

1  Bates  v.  State,  31  Ind.  72. 

2  Com.  v.  Bean,  11  Cush.  (Mass.)  414. 
8  State  v.  Learned,  47  Me.  426 

*  State  v.  Mace,  76  Me.  64. 


gg  CRIMINAL   LAW. 

the  former  conviction  is  not  alleged  in  the  indict- 
ment.1 

It  is  perfectly  constitutional,  however,  to  provide 
for  a  charge  of  crime  hy  the  use  of  its  Legal  name, 
without  a  full  description  of  it.  So  it  is  constitu- 
tional to  indict  one  for  committing  perjury  before  a 
certain  court  by  giving  certain  testimony,  without 
alleging  that  the  testimony  was  false;  for  perjury  is 
necessarily  false  swearing.2 

JOINDER    OF    COUNTS    AND    OFFENCES. 

§  lit.  Duplicity.  —  Only  one  crime  must  be  stated 
in  a  single  count.  If  the  elements  of  more;  than  one 
crime  are  included  in  a  count,  it  is  uncertain  which 
crime  is  charged,  and  the  accused  cannot  prepare 
his  defence.3 

Where,  however,  one  or  more  smaller  crimes  are 
merged  in  a  greater  crime  when  the  latter  is  com- 
mitted, ih.'  indictment  for  the  greater  crime  is  not 
double  because  it  states  such  elements  of  the  smaller 
crimes  as  also  exist  in  the  greater.  So  an  indict- 
ment for  homicide  may  and  must  include  a  charge  of 
assault  and  of  battery;  and  an  indictment  for  bur- 
glarv  may  contain  a  charge  of  larceny,  and  must  in- 
clude one  of  attempt  to  commit  larceny.4 

Whether  duplicity  is  a  defect  of  form  or  of  sub- 
stance is  doubtful.  The  better  opinion  seems  to  be 
that  it  is  a  defect  of  form  only,  and  therefor."  that 
it  cannot  be  taken  advantage  of  after  verdict,  in 
some    jurisdictions,   however,    it    is   held   thai    where 

i  Com   >■.  Harrington,  130  Mass.  35. 
-  State  v.  Cmis. m. 59  Me.  137. 

«    Rex  r.  Marshall.   1    Moo.  C.  C.   158. 
6  Coin.  v.  Tuck,  20  Pick.  (Mass.)  350. 


OF  CRIMINAL   PROCEDURE.  89 

the  punishment  for  the  two  offences  which  are  joined 
is  different,  duplicity  is  a  fatal  defect,  even  after 
verdict. * 

§  112.  Conviction  of  Lesser  Offence.  —  When  the 
crime  charged  necessarily  embraces  a  lesser  offence 
as  part  and  parcel  of  it,  and  the  latter  is  described 
in  the  indictment  with  such  distinctness  that  it 
would  constitute  a  good  separate  indictment  for  that 
offence,  the  accused,  under  the  indictment  charging 
the  greater  and  the  lesser,  may  be  found  guilty  of 
the  latter.  Thus,  on  an  indictment  for  an  assault 
with  intent  to  murder,  the  assault  being  well  charged, 
and  the  intent  not  being  proved,  the  defendant  may 
be  found  guilty  of  an  assault.  This  was  the  com- 
mon law  when  both  offences  were  of  the  same  grade, 
and  is  now  the  law  by  statute  in  England,  and  very 
generally  in  the  United  States,  when  the  offences 
are  of  different  grades.2 

§  113.  Joinder  of  Counts  for  same  Offence.  —  It  is 
allowable  for  the  pleader  to  state  the  same  offence  in 
different  ways,  in  as  many  different  counts  to.  one 
indictment,  even  though  the  punishment  is  different, 
provided  the  counts  are  all  for  felony  or  all  for  mis- 
demeanor.3 At  common  law,  two  counts  could  not 
be  joined  in  the  same  indictment  where  one  was  for 
a  felony  and  the  other  for  a  misdemeanor;  for  the 
incidents  of  trial  —  as  to  challenges  of  jurors,  for  in- 
stance —  were  different  in  the  two  classes  of  crime. 
By  statute,  however,  this  has  almost  everywhere  been 

i  Reed  v.  People,  1  Park.  (N.  Y.)  481 ;  People  v.  Wright,  9  Wend. 
(N.Y.)  193. 

2  Regina  v.  Bird,  5  Cox  C.  C.  20;  Cora.  v.  Roby,  12  Pick.  (Mass.) 
496 ;  1  Bish.  Cr.  Law,  7th  ed.,  §  809. 

3  Beasley  v.  People,  89  111.  571. 


00  CRIMINAL   LAW. 

done  away  with,  and  felony  and  misdemeanor  may 
be  joined.1 

Winn  a  trial  is  had  on  an  indictmeni  containing 
several  counts  for  the  same  offence,  a  general  verdict 
of  guilty  is  good;  or  the  defendant  may  be  found 
guilty  on  one  count  and  not  guilty  on  the  rest.  Be 
may  not,  however,  be  found  guilty  on  two  counts, 
and  doI  guilty  on  others;  for  such  a  verdict  would 
be  inconsistent,  and  would  make  two  offences  out 
of   oln  .- 

A  misjoinder  of  counts  is  cured  by  a  verdict  for 
the  defendant  on  the  counts  improperly  joined.3  And 
where  one  of  the  counts  is  had.  a  general  verdict  of 
guilty  will  stand,  so  long  as  there  is  a  valid  count  to 
support  it.4 

§  114.  Joinder  of  Offences.  —  Two  or  more  counts 
may  be  joined  in  the  same  indictment,  even  for 
different  offences,  provided  they  are  of  the  same  gen- 
eral nature,  and  subject  to  the  same  sort  of  punish- 
ment: and,  in  the  absence  of  statute,  provided  they 
are  all  felonies  or  all  misdemeanors.6  This  liberty 
is  liable  to  abuse;  for  where  a  greal  number  of  of- 
fences are  joined  in  a  single  indictment,  too  greai 
a  burden  is  put  on  the  defendant  in  preparing  his 
defence.  There  exists  no  remedy  for  this  abuse, 
however,  except  the  discretion  of  the  court  to  order 
the  prosecution  to  elect  on  which  count  or  counts  it 

i  So  in  Pennsylvania  by  the  common  law  Stevick  v.  Com.,  78 
Pa  460 

-  Cum   v.  Fitchburg  R.  R   Co,  120  Mass.  372. 
8  Com   v.  Chase,  127  Mass  7. 

*  Claasen  v   United  States.  142  U.  S   1  10,  ami  cases  cited. 
5  Com     v     Mullen,    150    Mass.  3'J-t ,    Com.  v.  O'Connell,   12  Allen 
451. 


OF  CRIMINAL  PROCEDURE.  91 

will  proceed.1  This  is  more  often  done  in  the  case 
of  felony  than  of  misdemeanor.  In  fact,  it  seems 
to  follow  of  course  in  England  that  the  court,  on 
request  of  the  defendant,  should  compel  an  election 
in  case  of  felony ;  but  it  is  never  a  matter  of  course 
in  a  case  of  misdemeanor.2 

§  115.  Cumulative  Sentence.  —  Where  an  indictment 
charges  different  offences  in  different  counts,  the 
question  of  punishment  is  a  difficult  one.  In  Eng- 
land in  such  a  case  each  count  is  held  to  be  a  sepa- 
rate charge  of  crime ;  and  sentence  is  imposed  upon 
each  count,  that  on  the  second  count  to  begin  upon 
the  termination  of  the  sentence  on  the  first  count.3 
In  5few  York,  however,  a  cumulative  sentence,  where 
the  punishment  of  each  crime  was  imprisonment, 
was  held  void.4  The  argument  on  which  this  de- 
cision is  based  would  seem  to  hold  equally  good 
where  the  punishments  are  all  fines;  yet  every  court 
would  probably  hold  it  proper  to  impose  a  separate 
fine  on  each  count  of  an  indictment.  The  English 
decision  would  seem  to  be  supported  by  the  most 
valid  arguments. 

§  116.  Joinder  of  Defendants.  —  Where  two  or  more 
join  in  the  commission  of  a  crime,  each  may  be 
separately  indicted,  or  all  may  be  joined  in  a  sin- 
gle indictment ;  and  in  that  case  they  may  be  tried 
together,  and  one  found  guilty  while  another  is  ac- 
quitted.5    The   defendants    must,    however,    all    be 

i  Com.  v.  Mullen,  150  Mass.  .394,  397. 

2  Castro  v.  Queen,  6  App.  Cas.  229,  244. 

3  Castro  v.  Queen,  6  App.  Cas.  229. 

4  People  v.  Liscomb,  60  N.  Y.  559. 

5  2  Hawk.  P:  O,  c.  25,  §  89. 


92  CRIMINAL    LAW. 

guilty  of  the  same  offence;   therefore,  ali  must  be 
principals  or  all  accessories. 

It  lies  in  the  discretion  of  the  court,  where  two 
defendants  arc  jointly  indicted,  to  try  them  sepa- 
rately ;  and  a  defendant  cannot  object  to  the  exercise 
of  this  discretion,  or  the  refusal  to  exercise  it.1 

DOUBLE   JEOPARDY. 

§  117.  No  One  Twice  to  be  put  in  Jeopardy.  —  It  is  a 
well  settled  and  most  salutary  principle  of  criminal 
law  that  no  person  shall  be  put  upon  trial  twice  for 
the  same  offence.  This  old  doctrine  of  the  common 
law  has  found  its  way  into  the  Constitution  of  the 
United  States,  and  into  that  of  most  or  all  of  the 
Slates,  in  different  forms  of  expression,  substan- 
tially that  no  person  shall  be  put  twice  in  jeopardy 
of  life  or  limb  for  the  same  offence.  Tin'  meaning 
of  this  is,  that  when  a  person  has  been  in  due  form 
of  law  [iiit  upon  trial  upon  a  good  and  sufficient  in- 
dictment, and  convicted  or  acquitted,  that  conviction 
or  acquittal  may  lie  pleaded  in  bar  to  a  subsequent 
prosecution,  within  the  same  jurisdiction,  for  the 
same  offence.-  And  even  if  the  indictment  be  in- 
sufficient ami  the  proceedings  be  irregular,  so  that  a 
judgment  thereupon  might  be  set  aside  upon  proper 
pn ss,  vet  if  the  sentence  thereunder  has  been  ac- 
quiesced in  by  and  executed  upon  the  convict,  such 
illegal  and  voidable  judgmenl  constitutes  a  good  plea 
in  bar."'  So  if  the  prisoner  he  sentenced  to  an  illegal 
punishment,       as,   for  instance,   to  line  and   iniprisoii- 

1  l  Bish.  Crim.  Proc  .  3d  ed  .  S  h>i^ 

2  United  States  v  Gibert,  'J  Snmn   (U.  S.  C.  Ct.)  19. 

8  Com  v   Loud,  .'i  .Met.  (Mass  )  328. 


OF  CRIMINAL  PROCEDURE.  93 

ment,  where  the  law  authorizes  only  one, —  after  part 
execution  of  either,  he  cannot  afterwards,  upon  a 
revision  of  the  sentence,  even  during  the  same  term 
of  court,  be  punished  by  the  imposition  of  the  lawful 
punishment.1 

The  trial  and  jeopardy  begin  when  the  accused  has 
been  arraigned  and  the  jury  empanelled  and  sworn.2 

Though  from  the  words  "  jeopardy  of  life  or  limb  " 
it  has  been  contended  that  the  rule  is  applicable, 
where  such  words  or  their  equivalent  are  used,  only 
to  such  crimes  as  are  punished  by  injury  to  life  or 
limb,  yet  it  is  very  generally,  if  not  universally,  held 
by  the  courts  that  it  is  applicable  to  all  grades  of 
offences.3  It  is  not  only  for  the  interest  of  society 
that  there  should  be  an  end  of  controversy,  but  it  is 
a  special  hardship  that  an  individual  should  be  in- 
definitely harassed  by  repeated  prosecutions  for  the 
same  offence.  Where,  however,  the  same  act  consti- 
tutes two  offences,  there  may  be  a  punishment  for 
each  offence.4  But  if  the  same  act  is  made  an  offence 
by  two  statutes,  creating  different  offences  in  name 
but  designed  to  prevent  the  same  crime,  the  offender 
cannot  be  convicted  under  both  statutes.5 

§  118.  So  firmly  is  this  doctrine  established,  that 
the  government  will  not  be  allowed  to  institute  a 
second  prosecution,  or  put  the  prisoner  to  a  new 
trial,  even  though  his  acquittal  is  consequent  upon 

1  Ex  parte  Lange,  18  Wall.  (U.  S.)  163,  Clifford  and  Strong.  JJ., 
dissenting. 

2  Com.  v.  Tuck,  20  Pick.  (Mass.)  356;  Bryans  v.  State,  34  Ga.  323 ; 
Ferris  v  People,  48  Barb   (N.  Y.)  17. 

3  1  Bish.  Cr  Law,  §  990. 

4  State  v.  Inness,  53  Me  536;  Com.  v.  McShane,  110  Mass.  502. 
6  Wemvss  v.  Hopkins,  L  R.  10  Q.  B  378. 


94  <  i:l-UIXAL   LAW 

the  judge's  mistake  of  law,  or  the  jury's  disregard 
of  fact.  If,  however,  he  be  convicted  by  a  mis- 
direction of  the  judge  in  point  of  law,  or  misconduct 
on  the  part  of  the  jury,  he  may  by  proper  process 
have  the  verdict  set  aside;  in  which  case,  the  trial 
not  having  been  completed,  and  the  verdicl  having 
been  set  aside  at  his  request,  the  accused  may  be 
again  sel    to  the   bar.1 

To  give  the  accused,  therefore,  a  good  plea  that 
he  has  once  been  put  in  jeopardy,  ii  must  appear 
that  he  was  put  upon  trial  in  a  court  of  competent 
jurisdiction,  upon  an  indictment  upon  which  he 
might  have  been  lawfully  convicted  of  the  crime 
charged,  and  before  a  jury  duly  empanelled,  and 
that,  without  fault  on  his  part,  he  was  convicted  or 
acquitted,  or  that,  it'  there  was  no  verdict,  the  jury 
were  unlawfully  discharged.  And  the  jury  may  be 
discharged  before  verdict  is  rendered  when,  in  the 
judgment  of  the  court,  there  is  a  clear  necessity  there- 
for, or  the  ends  of  just  ice  will  otherwise  he  defeated ; 
as  where  the  term  of  court  expires  before  a  verdict  is 
reached;  or  the  jury,  after  sufficient  deliberation,  of 
which  the  court  is  the  judge,  cannot  agree;  or  the 
trial  is  interrupted  by  the  sickness  or  death  of  judge 
or  juror:  or  the  jury  is  discharged  by  the  consent  of 
the  prisoner.2     So  much  of  the  learned  opinion  of 

1  Regina  v  Drtuy,  3  Car  &  K.  193;  Regina  >•.  Deane,  5  Cox  C  C 
501  ;  People  v  M'Kay,  18  Johns.  212,  Coin  v.  Green,  17  Mass.  515; 
Com.  r.  Sholes,  13  All   (Mass  )  554 

-  Sec  Ex partt  Lange,  18  Wall  (!'  S.)  163;  Regina  v.  Bird,  5 Cox 
C.  C.  2U;  Com  v  Roby,  12  Pick.  (Masa  I  196  Guenther  v  People, 24 
X  v.  100;  Bines  v  State  24  Ohio  Si  134;  State  ».  Jefferson,  66  N  C. 
309;  Mate  v  Wilson.  50  Ind  -»v7  ;  Stale  u  Vaughan,  29  Iowa,  286; 
McNeil  v.  State,  47  Ala  498  ,  Simmons  a   United  States,  142 1)  S  i  W. 


OF  CRIMINAL   PROCEDURE.  95 

Judge  Story,  in  United  States  v.  Gibert,1  as  holds 
that  no  new  trial  can  be  had  in  cases  of  felony,  is 
now  generally,  if  not  universally,  regarded  as  un- 
sound law.2  If  the  accused  procure  a  conviction  by 
fraud,  it  will  not  avail  him  as  a  plea  in  bar,  this 
being,  within  the  above  rule,  by  his  fault.3  So  if, 
after  a  trial,  the  prisoner  fails  to  appear  when  the 
jury  return  with  their  verdict,  and  no  verdict  is  ren- 
dered, no  trial  is  completed,  and  the  accused  may  be 
put  on  trial  again.  And  if  the  court  before  whom 
the  accused  was  formerly  tried  had  no  jurisdiction, 
there  has  been  no  jeopardy.4 

§  119.  Prosecution  by  another  Sovereignty.  —  The 
rule  does  not  protect  from  prosecution  by  another 
sovereignty,  if  the  same  act  is  a  violation  of  its  law, 
as  the  laws  of  a  country,  and  especially  the  criminal 
laws,  have  no  extra-territorial  efficacy.  If,  there- 
fore, one  sovereignty  has  punished  an  act  which  was 
also  a  violation  of  the  law  of  another  sovereignty, 
the  latter  has  the  right,  in  its  discretion,  also  to 
punish  the  act.5  Doubtless,  however,  in  such  case, 
the  fact  of  prior  punishment  would  have  great  weight 
in  determining  whether  the  guilty  party  should  be 
again  punished  at  all,  or,  if  punished,  to  what  degree.6 

i  2  Sumner  C.  Ct.  19. 

2  Ex  parte  Lange,  ubi  supra,  dissenting  opinion  of  Clifford,  J 

3  Com.  v.  Pascom,  111  Mass  404  ,  State  v.  Cole,  48  Mo.  70  ;  State  v. 
Lowry,  1  Swan  (Tenn.)  34  ,  State  v.  Battle,  7  Ala.  259  ,  Com.  v  Alder- 
man, 4  Mass.  477. 

4  Com.  v.  Peters,  12  Met  387  ;  Regina  v.  Bowman,  6  C.  &  P  337; 
People  v.  Barrett,  1  Johns.  6G. 

5  State  v.  Brown,  1  Hayw.  (N.  C  )  100;  United  States  v.  Amy,  14 
Md.  149,  n. ;  Com.  v.  Green,  17  Mass.  515  ,  Phillips  v.  People,  55  111.  429 ; 
ante,  §  83. 

6  United  States  v  Amy,  14  Md.  149,  n. 


96  CRIMINAL  LAW. 

It  has  been  said  by  high  authority,3  that  a  convic- 
tion under  one  sovereignty  of  piracy,  which  is  an  of- 
fence against  all  sovereignties,  would  doubtless  be 
recognized  in  all  other  civilized  countries  as  a  good 
plea  in  bar  to  a  second  prosecution.  When  there 
are  two  sovereignties  having  jurisdiction  within  the 
same  geographical  limits,  there  can  be  no  doubt  thai 
one  act  may  constitute  a  crime  againsl  both,  and  be 
punishable  by  both.  Thus,  an  assault  upon  an 
officer  of  the  United  States,  while  acting  in  the  dis- 
charge of  bis  duty  within  the  limits  of  a  State,  may 
be  punished  by  the  State  as  an  assault,  and  by  the 
United  States  as  an  assault  upon  its  officer  in  the 
discharge  of  his  duty, —  a  higher  offence.2  So  it  has 
been  held  that  the  same  act  may  be  a  violation  of  a 
city  charter  and  the  penal  law  of  the  State.3  But 
the  better  view  seems  to  be  thai  in  such  a  case 
there  is  only  one  offence,  and  can  be  but  one  pun- 
ishment.1 

§  120.  What  is  the  same  Offence.  —  Where  there  has 
been  an  acquittal  for  variance,  a  new  indictment  will 
lie,  in  which  the  crime  is  correctly  described.  The 
two  offences  are  not  identical.5  So  where  formerly 
the  venue  was  wrongly  stated;6  or  the  property  al- 
leged to  have  been  injured  was  wrongly  described ; 7 
or  a  murder  was  alleged  to  have  been  committed  by 
shooting,  where  the  evidence  showed  it  was  done  by 

«  United  States  v  Pirates,  5  Wheat.  (U.  S.)  184. 

2  Moore  u    Dlinois,  I  I  How.  (U.  S.)  13. 

*  Ambrose  u  State,  6  [nd  351 

4  State  v.  Thornton,  37  Mo  300;  Preston  v.  People,  45  Mich.  486. 

6  Com.  >■  Chesley,  [07  Mass.  223. 

«  Com.  v.  Call,  21  Pick   (Mass.)  r,09. 

■  ('..in  v  Wade,  17  Pick  (Mass.)  395. 


OF  CRIMINAL  PROCEDURE  97 

beating.1  The  same  is  true  where  the  act  is  de- 
scribed as  a  different  crime,  having  been  wrongly 
described  before ;  as  where  one  acquitted  of  larceny 
is  indicted  for  receiving  stolen  goods,2  or  one  ac- 
quitted of  a  crime  as  principal  is  indicted  as  acces- 
sory.3 The  test  is  this:  whether,  if  what  is  set  out 
in  the  second  indictment  had  been  proved  under  the 
first,  there  could  have  been  a  conviction.4 

§  121.  Prior  Conviction  of  less  Degree  of  same  Offence. 
—  Where  one  is  tried  on  an  indictment  consisting 
of  several  counts,  and  is  acquitted  on  some  counts 
and  convicted  on  others,  and  secures  a  new  trial,  he 
cannot  again  be  tried  on  those  counts  on  which  he 
has  been  acquitted.5  Where  he  is  found  guilty  of  a 
less  degree  of  crime  than  that  charged,  as  when  on 
an  indictment  for  murder  he  is  found  guilty  of  man- 
slaughter, and  secures  a  new  trial,  he  cannot,  ac- 
cording to  the  weight  of  authority,  be  again  convicted 
of  a  higher  crime  than  that  of  which  he  was  formerly 
convicted ;  for  conviction  of  the  lower  crime  involves 
an  acquittal  of  the  higher.6 

§  122.  Greater  or  Less  Offence.  —  As  to  the  effect  of 
a  former  acquittal  of  an  offence  which  includes,  or 
is  part  of,  another  offence,  there  is  some  confusion, 

1  Guedel  v.  People,  43  111.  226. 

2  Com.  v.  Tenney,  97  Mass.  50. 

3  Rex  v.  Plant,  7  C.  &  P.  575 ;  Reynolds  v.  People,  83  111.  479. 

4  2  East  P.  C.  522;  1  Bish.  Crim.  Law,  7th  ed.,  §  1052;  Rex  v. 
Taylur,  3  B  &  C.  502;  United  States  v.  Nickerson,  17  How.  (U.  S.) 
204. 

5  State  v.  Kattlemann,  35  Mo.  105. 

6  Slaughter  v.  State,  6  Humph  (Term.)  410;  State  v.  Belden,  33 
"Wis.  1 20.  Contra.  State  v.  Behimer,  20  Ohio  St.  572.  See  the  authori- 
ties collected,  Wharton,  Crim.  riead-,  9th  ed.,  §  465. 

7 


98  CRIMINAL   LAW. 

not  to  say  difference,  amongst  tin:  authorities.  But 
the  following  is  believed  to  be  a  fair  statement  of 
the  result.  Where  a  person  has  been  tried  for  an 
offence  which  necessarily  includes  one  or  more 
others  of  which  he  might  have  been  convicted  under 
the  indictment,  he  cannot  he  afterwards  tried  for 
either  of  the  offences  of  which  he  might  have  been 
convicted  under  the  indictmenl  on  which  he  was 
tried.1  Thus,  if  the  trial  is  upon  an  indictment  for 
assault  and  battery,  it  cannot  be  afterwards  had  upon 
an  indictmenl  for  an  assault.  On  an  indictment  for 
an  offence  which  is  part  and  parcel  of  a  greater,  a 
previous  trial  lor  the  lesser  is  not  a  War  to  a  subse- 
quent trial  for  the  greater,  unless  some  decisive  fact 
is  necessarily  passed  upon  underthe  first  indictment, 
in  such  a  way  as  to  amount  to  an  effectual  bar  to 
the  second.2  A  conviction  or  acquittal,  in  order  to 
be  a  har  to  a  subsequent  prosecution  in  such  a  ease, 
must  be  for  the  same  offence,  or  for  an  offence  of  a 
higher  degree,  and  necessarily  including  the  offence 
for  which  the  accused  stands  a  second  time  indicted. 
Thus,  a  conviction  under  an  indictment  for  assault 
is  no  har  to  an  indictment  for  assault  with  intent 
to  roh,  because  the  prisoner  has  never  been  tried  on 
an  indictment  which  involves  an  issue  conclusive 
upon  the  second  charge.  On  the  other  hand,  if  one 
be  acquitted  on  an  indictment  for  manslaughter, 
he  cannot  afterwards  he  tried  for  murder,  because 
the  acquittal  necessarily  involves  the  finding  the 
issue  of  killing,  whether  with  or  without   malice,  in 

1   Regina  v.  Gould,  9  C.  &  P.  304;   People  v.  M'Gowan,  17  Wend. 
(N.  V  )  386. 

a  Regina  v.  Bird,  5  Cox  C.  C.  20. 


OF  CRIMINAL  PROCEDURE.  99 

favor  of  the  defendant.1  And  this  would  be  true, 
even  if  the  judge  should  discharge  the  jury  on  the 
ground  that  the  proof  made  the  case  one  of  murder.2 
And  the  same  is  true  where  the  prisoner  was  for- 
merly tried  for  a  less  serious  degree  of  larceny  or  of 
house-burning  than  that  now  charged.3  The  offence 
is  the  same  if  the  defendant  might  have  been  con- 
victed on  the  first  indictment  by  proof  of  the  facts 
alleged  in  the  second.  The  question  is  not  whether 
the  same  facts  are  offered  in  proof  to  sustain  the 
second  indictment  as  were  given  in  evidence  at  the 
trial  of  the  first,  but  whether  the  facts  are  so  com- 
bined and  charged  in  the  two  indictments  as  to  con- 
stitute the  same  offence.  It  is  not  sufficient  that  the 
facts  on  which  the  two  indictments  are  based  are  the 
same.  They  must  be  so  alleged  in  both  as  to  con- 
stitute the  same  offence  in  degree  and  kind.4 

A  conviction  or  acquittal  on  a  charge  of  larceny 
of  one  of  several  articles,  all  stolen  at  the  same  time, 
is  a  good  plea  in  bar  of  any  subsequent  prosecution 
for  the  larceny  of  either  or  all  of  the  other  articles.5 

i  State  v.  Foster,  3.3  Iowa,  525  ;  Scott  v.  United  States,  Morris,  142. 

2  People  v.  Hunckeller,  48  Cal.  331.  See  also  upon  the  general 
subject,  as  involving  the  different  views  of  different  courts,  Com.  v. 
Hardiman,  9  Allen  (Mass.)  487  ;  State  v.  Nutt,  28  Vt.  598;  State  v. 
Inness,  53  Me.  536;  Roberts  v.  State,  14  Ga.  8;  Wilson  v.  State,  24 
Conn.  57;  State  v.  Pitts,  57  Mo.  85;  State  v.  Cooper,  1  Green  (X.  J.) 
361  ;  and  1  Rish.  Cr.  Law,c.  63,  where  the  whole  subject  is  treated  with 
great  fulness. 

3  Com.  u.  Squire,  1  Met.  (Mass.)  258. 

*  Com.  v.  Clair,  7  Allen  (Mass.)  525 ;  People  v.  Warren,  1  Park. 
(N.  Y.)  C.  R.  338;  Rex  v.  Vandercomb,  2  Leach  (4th  ed.)  708;  Dur- 
ham v.  People,  4  Scam.  (111.)  172. 

5  Jackson  r.  State,  14  Ind.  327.  See  also  Guenther  v.  People,  24 
N.  Y.  100;  Fisher  v.  Com.,  1  Rush  (Ky.)  211. 


100  CRIMINAL   LAW. 

An  exception,  however,  exists  in  the  case  of  mur- 
der. Where  the  prisoner  was  formerly  tried  for  an 
assault,  and  convicted,  if  the  party  assaulted  after- 
wards dies  from  the  assault,  the  prisoner  may  be 
tried  for  the  murder,  and  his  former  jeopardy  will 
not  avail  him.1  And  an  acquittal  of  an  assault  with 
intent  to  kill  the  party  who  afterwards  dies  from  the 
assault  will  not  necessarily  protect  the  accused,  since 
murder  may  be  committed  without  any  intent  to  kill, 
and  even  without  a  criminal  assault. - 

§  L23.  Practice. — If  a  plea  of  former  acquittal  or 
conviction  to  an  indictment  for  a  misdemeanor  lie 
found,  on  replication  or  demurrer,  against  the  pris- 
oner, he  might  he  sentenced  without  a  trial  for  the 
offence  itself;3  but  upon  the  decision  against  the 
prisoner  in  such  a  case,  on  an  indictment  \'*>r  felony, 
he  might  answer  over,  and  have  his  trial  upon  the 
merits.  This  is  not,  however,  the  rule  in  this  coun- 
try, where  the  prisoner  is  usually  allowed  to  have 
his  trial  in  both  cases,  as  a  matter  of  right,  if  in  his 
plea  he  reserves  the  right  to  plead  over.4  In  Ten- 
nessee, it  has  been  said  to  be  a  matter  of  discretion 
with  the  court.' 

EVIDENCE    IN    CRTM I N  W.    CASES. 

§  124.  Burden  of  Proof.  —  The  rules  of  evidence 
applicable    in    criminal    cases  are  substantially  the 

;   Regina  u    Morris,  10  Cox  C  C    480;  state  v.  Littlefield,  70  Me. 

I  lorn   v.  Roby,  12  Pick   (Mass  )  496. 
-  Regina  v  Salvi,  10  Cox  C  C  481,  n 

3  Roginav    Bird,  2  Eng   L.  &  Eq   530;  -  c  5  Cox  C  C  20 

4  Com  v  Goddard,  13  Mass  455;  Barge  v  Com.,  3  P  .<•  W.  (Pa  I 
262;  Ross  o   State,  9  Mo  696;  State  v    Dresser,  54  Me.  569;  I'uited 

u  Conant,  I     I  t   Mass  .  Sept.,  1879. 
6  Bennett  v.  State,  2  Yerg  472. 


OF  CRIMINAL  PROCEDURE.  101 

same  as  in  civil  cases,  with  the  single  exception  that 
in  a  criminal  case  every  essential  allegation  made 
by  the  prosecution  must  be  proved  beyond  a  reason- 
able doubt,  in  order  to  entitle  the  government  to  a 
verdict.  If  upon  all  the  evidence  introduced  by  the 
government  and  by  the  accused  there  results  a  rea- 
sonable doubt  upon  any  essential  allegation  in  the 
indictment  or  complaint,  the  criminal  is  entitled  to 
an  acquittal.  Upon  all  these  issues,  therefore,  he 
has  only  to  raise  a  reasonable  doubt.  When,  how- 
ever, the  accused  sets  up  in  defence  a  distinct  and 
independent  fact,  not  entering  into  these  issues,  he 
must  prove  it  by  a  preponderance  of  evidence.  Thus, 
if  the  defence  be  insanity,  the  better  view  is,  that, 
since  it  is  a  part  of  the  case  of  the  prosecution  that 
the  accused  was  sane,  it  is  necessary  tor  the  accused 
to  produce,  or  that  there  should  appear  in  the  case 
upon  all  the  evidence  introduced,  only  so  much  evi- 
dence of  insanity  as  to  induce  a  reasonable  doubt  on 
the  issue,  in  order  to  secure  his  acquittal.  If,  on 
the  other  hand,  the  defence  be  a  former  acquittal, 
since  this  is  a  new,  distinct,  and  independent  fact, 
in  no  way  embraced  in  the  allegations  of  the  prose- 
cution, the  accused  assumes  the  burden  of  proof,  and 
must  establish  the  fact  by  a  preponderance  of  evi- 
dence. In  civil  cases,  each  party  takes  the  burden 
of  proof  of  the  facts  alleged  essential  to  make  out  his 
case,  and  may  establish  them  by  a  preponderance  of 
proof.1  Criminal  cases  to  which  the  rule  of  proof 
beyond  reasonable  doubt  applies  are  such  only  as  are 

1  See  1  Greenl.  Ev.  (13th  ed.),  §§  81  a,  81  b  ;  2  Greenl  Ev.,§29,  n.  ; 
Steph.  Dig.  of  the  Law  of  Ev.  (May's  ed.),  p.  40,  n. ;  10  Am.  L.  Rev., 
p  642  et  seq  ;  Kane  >•.  Hibernia  Ins.  Co.,  10  Vroom  (N.  J.)  697. 


102 


CRIMINAL   LAW. 


criminal  in  form,  and  cognizable  by  a  court  adminis- 
tering the  criminal  law.  If  the  question  whether  a 
crime  lias  been  committed  arises  in  a  civil  case, 
tried  by  a  court  administering  the  civil,  as  contra- 
distinguished from  the  criminal  law,  the  rule  of 
evidence  applicable  in  the  civil  courts  prevails. 
Thus,  in  an  indictmenl  for  an  assault,  the  prosecu- 
tion must  prove  the  assault  beyond  a  reasonable 
doubt;  while,  in  a  civil  action  for  damages  for  the 
same  assault,  the  plaintiff  is  only  required  to  prose 
it  by  a  preponderance  of  evidence. 

The  general  test  of  a  criminal  case  is  that  it  is  by 
indictment,  am!  of  a  civil  case  that  it  is  hv  action. 
But  the  decisions  upon  this  point  are  not  uniform.1 

^  1_:.~>.  Doubt  as  to  Interpretation.  ■ — If  it  In'  fairly 
doubtful  whether  the  crime  charged  comes  within 
the  purview  of  a  statute,  it  has  been  frequently  said, 
the  prisoner  is  entitled  to  the  benefit  of  the  doubt.2 

Bui   it    has  also   I n  held   that   it    is   not    the   duty   of 

the  court  to  instruct  the  jury  that,  if  the}  have  a  rea- 
sonable doubl  as  to  the  law  or  the  applicability  of 
the  evidence,  they  must  give  the  prisoner  the  benefit 
of  the  doubt.3  And  perhaps  it  is  only  a  court  of  last 
resort,  if  any,  which  should  give  the  prisoner  that 
benefit.4 

It  is.  however,  a  universal  rule  of  const  ruction, 
that  all  penal  and  criminal  laws  shall  We  construed 
strictly  in  favor  of  the  life,  liberty,  and  property  of 
the  citizen.5 

i  't'li.'  cases  :ir<-  vitv  fnllv  collected  in  1  T'-i^li  Cr  Law,  ?S  32,  33. 
2  United  States  <■.  Whittier,  Dillon,  J  .  6  Reptr  260,  and  cases  there 
cited. 

b  Q'Neil  v.  State   18  Ga.  66.  *  Cook  v.  State,  n  Ca.  53. 

6  Com   /•    Barlow,  4  Mass.  439. 


OF  CRIMINAL   PROCEDURE.  103 

§  126.  Corpus  Delicti.  —  There  must  be  clear  proof 
of  the  corpus  delicti,  that  is,  of  the  fact  that  a  crime 
has  been  committed.1  Were  this  not  required,  the 
danger  of  conviction  in  cases  where  no  crime  had  in 
fact  been  committed  would  be  great.  But  this  fact, 
like  any  other,  may  be  proved,  by  a  proper  amount 
of  circumstantial  evidence ; 2  it  must,  however,  be 
so  proved  beyond  reasonable  doubt.3 

§  127.  Testimony  of  Defendant.  —  At  common  law 
the  defendant  was  not  allowed  to  testify  in  his  own 
behalf.  This  has  been  changed  in  this  country  by 
statute,  and  a  defendant  may  if  he  chooses  testify  on 
his  own  behalf.  By  all  our  Constitutions,  however, 
a  witness  cannot  be  compelled  to  testily  against 
himself;  consequently  the  prosecution  cannot  call 
upon  the  defendant  to  take  the  stand. 

It  is  provided  in  some  States  that,  if  the  accused 
does  not  testify,  no  inference  can  be  drawn  against 
him.  Even  where  this  provision  is  not  made,  it 
would  seem  unfair  to  draw  such  an  inference,  espe- 
cially in  view  of  the  constitutional  provision.4  It  has 
however  been  held  in  such  a  case  that  the  refusal  of 
the  accused  to  testify  may  be  used  against  him.5 

If  the  accused  goes  on  the  stand,  the  better  view 
is  that  he  has  waived  his  constitutional  privilege,  and 
may  be  compelled  to  answer  any  questions  pertinent 

1  2  Hale  P.  C.  290;  Best,  Evid.(Chamberlayne's  ed.),  §441  ;  Rex  v. 
Burdett,  4  B.  &  Aid.  95,  123, 162  ;  State  v.  Davidson,  30  Vt.  377  ;  Wil- 
lard  v.  State,  27  Tex.  App.  386;  People  v.  Palmer,  109  N.  Y.  110. 

2  Stocking  v.  State,  7  Ind.  326  ;  United  States  v.  Williams,  1  Cliff 
C.  C.  5;  State  v.  Cardelli,  19  Nev.  319. 

3  Lee  v.  State,  76  Ga.  498 ;  Gray  v.  Com.,  101  Pa.  380. 
*  People  v.  Tyler,  36  Cal.  522. 

5  State  v.  Bartlett,  55  Me.  200. 


104  CRIMINAL  LAW. 

to  the  issue,1  though  not  questions  which  arc  asked 
merely  to  affect  the  credibility  of  the  witness.2 
Some  authorities,  however,  hold  thai  a  deb  ndant 
who  lias  become  a  witness  can  claim  his  privilege  at 
any  time,  though  if  he  does  so  unfavorable  inferences 
may  be  drawn.3 

II'  the  evidence  of  the  defendant  is  weak  and  unsat- 
isfactory, the  same  inferences  may  be  drawn  as  in  the 
case  of  any  witness.4 

^  128.  Confessions.  —  The  genius  of  the  common 
law  looks  with  disfavor  upon  any  attempt  to  prove 
(.ne  guilty  <>f  crime  by  his  own  testimony;  and  even 
a  confession  of  guilt  by  the  accused  is  received  in 
evidence  only  under  certain  conditions.  The  con- 
fession must  be  entirely  voluntary.  If  it  was  made 
under  duress,  or  by  reason  of  a  tlneat  or  promise  of 
favor  by  one  in  authority,  it  is  not  admissible.5 
Such  confessions  are  not  rejected  because  of  the 
breach  of  faith,  but  because  a  confession  gained  by 
such  means  is  untrustworthy.6  It  must  appear, 
therefore,  that  the  confession  was  induced  by  the 
threat  or  promise,  and,  it  would  seem,  thai  the  cir- 
cumstances were  such  that  the  accused  would  be 
likely  to  tell  an  untruth  from  fear  or  hope  induced 
by  those  in  authority." 

i  ( •,,!,,.  r.  Ni.-hols.  11  1  Ma<s.  285  ;  Com.  v.  Tollivcr,  119  Mass.  312; 
( •miners  v.  People,  50  X.  V.  240. 

2  People  v.  Brown,  72  X.  V.  571. 

::  Cooley,  Const.  Limit.,  *:U7. 

•»  Stover  r.  People,  56  X.  V.  315. 

■•  WarickshalTs  Case,  I  Leach  C.  I '.  263. 

,;  Regina  v.  Baldry,  2  Din.  ('.  ('.  430 ;  Com.  v.  Knapp.  '.»  Picl 
(Mass  |  195. 

'  Regina  v.  Jan-is,  L.  R.  i  C.C.  96  ;  Regina  v.  Reeve,  L.  R.  lC.  C 

362;  Com.  V.  Cnffee,  His  Mans.  285. 


OF  CRIMINAL  PROCEDURE.  105 

It  seems  to  be  doubtful  whether  court  or  jury  is  to 
decide  on  the  question  of  threat  or  promise.  As  a 
question  involving  the  admissibility  of  evidence,  it 
would  seem  more  properly  to  be  a  question  for  the 
court ; 1  but  it  is  often  held  that  the  question  should 
be  left  to  the  jury.2 

If  the  confession  was  in  fact  voluntarily  made,  it 
is  admissible,  though  given  without  any  reference  to 
the  present  proceedings,  and  even  under  a  misappre- 
hension. Thus,  testimony  voluntarily  given  at  a  fire 
inquest,3  or  at  a  former  trial,4  is  admissible;  and  so 
is  a  confession  made  to  officers  who  had  arrested  the 
accused  illegally.5  And  this  is  true,  although  the 
confession  was  made  without  knowleage  of  the  con- 
stitutional rights  of  an  accused,  and  without  advice 
of  counsel.6 

If  one  receives  a  confession  while  pretending  to  be 
an  officer,  but  in  fact  is  not  in  authority,  the  better 
view  would  seem  to  be  that  the  confession  is  admis- 
sible. So  if  a  man's  confession  is  overheard,  or  is 
obtained  by  a  private  person  by  cheat  or  drunken- 
ness, it  may  be  used.7  And  if  in  consequence  of  an 
inadmissible  confession  other  evidence  is  discovered, 
as,  for  instance,  if  the  weapon  with  which  a  murder 
was  committed  is  found,  such  evidence  may  be  intro- 
duced.8 

The  rule  as  to  confessions  does  not  apply  to  admis- 

1  Ellis  v.  State,  65  Miss.  44  ;  Biscoe  v.  State,  67  Md.  6. 

2  Com.  v.  Piper,  120  Mass.  185. 

3  Com.  i'.  Bradford,  126  Mass.  42. 

4  Com.  v.  Reynolds,  122  Mass.  454 
6  Balbo  v.  People,  80  N.  Y.  484. 

6  State  v.  Garrett,  71  N.  C.  85. 

»  Com.  v.  Howe,  9  Gray,  110. 

8  Com.  v.  James,  99  Mass.  438 ;  State  v.  Garrett,  71  N.  C.  85. 


100  CRIMINAL   LAW. 

si  mg  from  conduct.      Evidence  of  the  conducl  of  the 
accused  is  always  receivable;  such,  for  instance,  as 
the  flight  of  the  defendant,1  or  silence  of  the 
when  damaging  statements  are  made  under  such  cir- 
cumstances as  ••nil  for  denial.2 

An  uncorroborated  confession  is  not  enough  to 
justify  a  conviction.  The  corpus  delicti,  or  fad  thai 
a  crime  has  been  committed,  must  be  at  least  plausi- 
bly shown  by  other  i  videu 

£  L29.  Evidence  of  Character.  —  The  character  of  the 
accused  cannol  be  shown  in  evidence  by  the  pros 
tion:1  bu1  the  defendant  may  introduce  evidence  of 
his  own  good  character,  which  then  may  be  contro- 
verted by  the  prosecution.6  It  lias  been  sometimes 
said  that  proof  of  the  good  character  of  th<-  defend- 
ant is  available  only  in  doubtful  cases;  bul  the  bet- 
ter opinion  is  thai  it  may  be  shown  in  any  . 
the  weighl  of  it  being  for  the  jury.6  Character  is 
to  be  proved  by  general  reputation,  nol  by  special 
in-  .nicts   of   good  or  bad   conduct.7 

Jn  certain  cases  of  offences  againsl  women,  the 
woman's  character  for  chastity  may  he  shown,  as 
bearing  on  the  question  of  consent.8 

1  People  o.  Stanley,  47  Cal.  L13  [&>mble). 

-  Kelley  v.  People,  55  X.  Y.  565. 

:!  Ruloffu  People,  18  XV.  179;  Stater  German,  54  Mo.  526;  B  o. 
I  i  Amer  Rep  183,  186,  d  ;  Matthews  v.  State,  55  Ala.  L87 ;  Gray  v. 
Com.,  KM  Pa  380 

1   People  v  Greenwall,  108  X.  V.  296. 
I     m   v.  W\  bster,  5  <  Insh    |  Mass.)  295,  .324. 

BS  ■   Northrup,  i-   towa,  583,  and  cases  cited  ;  State  v.  Daley, 

53  Vt.  142  ;  Com.  u   Leonard,  I  10  Mass    173 

7  ('..in  v.  O'Brien,  1 19  Mass.  342  :  State  v.  Bloom, 68  End. 54  :  People 
v.  Greenwall,  108  N-  V   296. 

8  Woods  v.  People,  55  X  Y.  515;  Coin.  v.  Kendall,  113  Mass.  210; 
State  v.  Reed,  3'J  Vt.  417. 


OF   CRIMINAL   PROCEDURE.  107 

§  130.  Testimony  of  Accomplice.  —  It  is  sometimes 
urged  that  a  defendant  should  not  be  convicted  upon 
the  testimony  of  an  accomplice  without  corrobora- 
tion.1 This,  however,  is  not  a  rule  of  law.  It  is 
entirely  within  the  discretion  of  the  court  whether  it 
will  caution  the  jury  in  this  way ;  and  a  refusal  so 
to  do  is  no  matter  of  exception.2  The  practice  in 
England  is  more  uniform  in  felonies  than  in  misde- 
meanors, in  which  latter  case  it  is  sometimes  re- 
fused.3 In  Georgia  the  rule  is  made  applicable  only 
in  felonies.4  But  a  conviction  on  the  uncorroborated 
evidence  of  an  accomplice  is  good  at  common  law. 
The  principle  which  allows  the  evidence  to  go  to 
the  jury  at  all  necessarily  involves  the  right  to  be- 
lieve and  act  upon  it.5  But  by  statute  in  Iowa 
and  Texas,  and  perhaps  other  States,  there  must 
be  corroboration.0 

§  131.  Fresh  Complaint.  —  In  rape  cases,  evidence 
is  admissible  that  the  woman  made  complaint  of  the 
ill  usage  as  soon  as  she  was  able  to  do  so ;  but  not,  in 
most  jurisdictions,  the  particulars  of  the  complaint.7 

1  See  ante,  §76. 

2  State  v.  Litchfield,  58  Me.  267  ;  Smith  v.  State,  37  Ala  472. 

3  McClory  v.  Wright,  10  Ir.  Com.  Law,  514  ;  1  Greenl.  Ev.,  §  382,  n. 

4  Parsons  v.  State,  43  Ga.  197. 

5  Com.  v.  Bosworth,  22  Pick.  (Mass.)  397;  People  v.  Costello,  1 
Denio  (N.  Y.)  83  ;  United  States  v.  Kessler,  1  Bald.  C.  Ct.  15  ;  State 
v,  Wolcott,  21  Conn.  272  ;  Dawley  v.  State,  4  Ind.  128  ;  State  v  Prud- 
homrae,  25  La.  Ann.  522  ;  State  v.  Hyer,  39  N.  J.  L.  598;  Linsday  v. 
People,  63  N.Y.  143  ;  Hamilton  v.  People,  29  Mich.  173  ;  Com.  v.  Holmes, 
127  Mass.  424  ;  s.  c.  34  Araer.  Rep.  391,  408,  n.  ;  Kilrow  v.  Com.,  89  Pa. 
480;  State  v.  Holland,  83  N.  C.  624;  Collins  v.  People,  98  111.  584. 
Contm,  People  v.  Ames,  39  Cal.  403. 

6  State  v.  Moran,34  Iowa,  453  ;  Lopez  v.  State,  34  Tex.  133  ;  Smith 
v.  State,  37  Ala.  472. 

7  Regina  v.  Walker,  2  M.  &  R.  212. 


108  CRIMINAL  LAW 

In  some  States,  however,  all  the  particulars  of  the 
complaint  are  allowed  to  be  given  in  corroboration.1 
§  132.  Dying  Declarations.  —  In  trials  for  homicide, 
declarations  of  the  deceased  made  in  contemplation 
of  death  arc  admissible  to  prove  the  circumstances 
of  the  killing,  in  favor  of  the  prisoner  as  well  as 
against  him.2  The  declaration  must  he  a  statement 
of  fact,8  ami  it  must  appear  that  the  deceased  was 
conscious  that  he  was  at  the  point  of  death.4  If  he 
was  so  conscious,  the  declaration  is  admissible, 
though  in  fact  ho  lived  several  days;''  and  if  not 
so  conscious,  it  is  inadmissihle,  though  he  died 
at    once.6 

1  State  v.  Kinney,  44  Conn.  15.3. 

gina  v.  Scaife,  l  Moo  &  B.  551. 
s  People  v    Shaw,  63   N.  V.  36;  Collins  v    Com.,   12  Bush  (Ky.) 
271  ;  Whart.  Criin.  Ev.,  §  294. 

*  Sullivan  v.  Com.,  93  Pa.  284;  Com.  u.  Casey,  n  Cush.  (Mass.)  417 ; 
State  r.  Wagner,  01  Me.  178. 

5  Com.  v.  Cooper.  5  All    (Mass.)  495. 
Begina  v.  Jenkins,  L.  B.  1  C.  C.  187. 


OFFENCES  AGAINST  THE   GOVERNMENT.        1Q9 


CHAPTER   III. 


OFFENCES    AGAINST   THE   GOVERNMENT. 


§  134.  Treason. 

140.  Bribery. 

141.  Extortion  and  Oppression. 
143.  Barratry.  —  Champerty.  — 

Maintenance. 


§  146.  Embracery. 
147.  Perjury. 
154.  Contempt. 

159.  Rescue.  —  Escape. —  Prison 
Breach. 


§  133.  Introductory.  —  In  the  following  chapters, 
the  more  important  offences  will  be  considered  more 
at  large.  It  is  to  be  borne  in  mind  that  there  is  no 
sharply  defined  line  between  criminal  and  merely 
civil  offences ;  the  difference  is  only  one  of  degree. 
There  is  no  limit  to  the  number  of  crimes.  Those 
that  will  be  described  are  only  a  few,  which  from 
their  more  frequent  occurrence  or  their  greater 
importance  it  has  become  possible  to  define  with 
exactness. 

The  first  class  of  crimes  consists  of  offences 
against  the  public  in  its  corporate  capacity;  against 
the  government  itself,  or  some  department  of  it. 
The  most  heinous  crime  of  this  sort  is  treason. 
Other  important  crimes  are  bribery,  extortion,  and 
oppression;  offences  against  justice,  such  as  bar- 
ratry, champerty,  and  maintenance,  embracery,  per- 
jury, and  contempt ;  and  prison  breach  and  kindred 
crimes. 


HO  CRIMINAL    LAW 


TREASON. 


8  134.  At  common  I;mv  there  are  two  kinds  oi 
treason:  first,  disloyalty  to  the  King,  or  a  violation 
of  the  allegiance  due  him,  which  was  of  the  highesl 
obligation,  and  hence  called  high  treason;  and,  sec- 
ondly, a  violation  of  the  allegiance  or  duty  owed  by 
an  inferior  to  a  superior,  as  of  a  wife  to  the  husband, 
a  servanl  to  his  master,  or  an  ecclesiastic  to  his 
lord  or  ordinary, — either  of  which  inferiors,  if  they 
should  kill  their  superior,  were  held  guilty  of  petit 
treason.1  There  is  now,  however,  neither  in  Eng- 
land nor  in  this  country  any  such  classification  "i 
treasons.  — petit  treas  >ns  being  everywhi  re  punished 
as  homicides. 

§  135.  Definition.  —  By  the  ancient  common  law. 
the  crime  of  treason  was  not  clearly  defined,  whence 
arose,  according  to  the  arbitrary  discretion  of  the 
judges  and  tlie  temper  of  the  times.  ;i  greal  Dumber 
of  modes  by  which  it  was  held  treason  inighl  be  com- 
mitted, not  important  to  he  here  detailed.  'Die  in- 
convenii  uce  of  sic  h  uncertainty  as  to  the  law  led  to 
the  enactment  of  the  Stat.  25  VAw.  111.  c.  ±  which, 
confirmed  and  made  perpetual  by  the  57th  Geo.  IN. 
e.  6,  defines  the  law  of  England  upon  the  subject, 
enumerating  a  large  number  of  specific  acts  which 
may  constitute  the  offence.  Only  two  of  these,  how- 
ever, are  treasonable  in  this  country.2 

!;.  the  Constitution  of  the  United  States,8  treason 
is  declared  to  consist  only  "in   levying  war  against 

i   t  Bl.  Com.  75  :  R(  Bpnblica  ».  Chapman,  1  Dall.  (Pa 

2  Stephen's  I>i.ur  Cr.  Law,  art.  51  el  Beq. 

3  Art.  3,  §  3. 


TREASON.  HI 

them,  or  in  adhering  to  their  enemies,  giving  them 
aid  and  comfort " ;  and  this  must  be  by  a  person 
owing  allegiance  to  the  United  States.1  Substan- 
tially the  same  definition  is  adopted  by  the  several 
States,  some  of  them,  however,  setting  out,  either  in 
their  constitutions  or  the  statutes,  at  some  length, 
the  particular  methods  of  adhesion  and  of  giving  aid 
and  comfort  which  shall  constitute  treason. 

§  136.  War  may  be  Levied,  not  only  by  taking 
arms  against  the  government,  but  under  pretence  of 
reforming  religion  or  the  laws,  or  of  removing  evil 
counsellors,  or  other  grievances,  whether  real  or  pre- 
tended. To  resist  the  government  forces  by  defend- 
ing a  fort  against  them  is  levying  war,  and  so  is  an 
insurrection  with  an  avowed  design  to  put  down  all 
enclosures,  all  brothels,  or  the  like;  the  universality 
of  the  design  making  it  a  rebellion  against  the  State 
and  a  usurpation  of  the  power  of  government.  But 
a  tumult,  with  a  view  to  pull  down  a  particular 
house  or  lay  open  a  particular  enclosure,  amounts 
at  best  to  riot,  there  being  no  defiance  of  public 
government.2  An  insurrection  to  prevent  the  execu- 
tion of  an  act  of  Congress  altogether,  by  force  and 
intimidation,  is  levying  war;3  but  forcible  resist- 
ance to  the  execution  of  such  an  act  for  a  present 
purpose,  and  not  for  a  purpose  of  a  public  and  gen- 
eral character,    does    not  amount  to  treason;4    nor 

1  As  to  what  constitutes  allegiance,  see  2  Kent  Com.  (12th  ed.), 
p.  39  et  seq. 

2  4  Bl.  Com.  81,  82  ;  post,  §§  165,  166. 

3  United  States  v.  Mitchell,  2  Pall.  (Pa.)  348. 

4  United  States  v.  Hoxie,  1  Paine  C.  Ct.  265  ;  United  States  v.  Han- 
way,  2  Wall.  Jr  C.  Ct.  139. 


112  CRIMINAL    LAW 

does  the  mere  enlistment  of  men  into  service.1 
There  must  be,  to  constitute  an  actual  levy  of  war, 
an  assemblage  of  persons  met  for  a  treasonable  pur- 
pose, and  some  overt  act  done,  or  some  attempt  made 
by  them,  with  force,  to  execute,  or  towards  execut- 
ing 1 1 1 ; 1 1  purpose.  There  must  be  a  present  inten- 
timi  to  proceed  to  the  execution  of  the  treasonable 
purpose  by  force.  The  assembly  must  be  in  a  con- 
dition to  use  force,  if  necessary,  to  further,  or  to 
aid,  or  to  accomplish  their  treasonable  design.  If 
the  assembly  is  arrayed  in  a  military  manner  for 
the  express  purpose  of  overawing  or  intimidating  the 
public,  and  to  attempt  to  carry  into  effect  their 
treasonable  designs,  that  will,  of  itself,  amount  to  a 
levy  of  war,  although  no  actual  blow  has  been  struck 
or  engagement  has  taken  place.'2  So,  aiding  a  rebel- 
lion by  fitting  out  a  vessel  to  cruise  againsl  the  gov- 
ernment rebelled  againsl  in  behalf  of  the  insurgents, 
is  levying  war,  whether  the  vessel  sails  or  not.3  So 
is  a  desertion  to,  or  voluntary  enlistment  in,  the 
service   of  the   enemy.4 

In  England,  "levying  war"  is  held  to  mean:  — 
1st.  Attacking,  in  the  manner  usual  in  war,  the  Queen 
herself  or  her  military  forces,  acting  as  such  by  her 
orders  in  the  execution  of  their  duty;  2d.  Attempt- 
ing by  an  insurrection,  of  whatever  nature,  by  force 
or  constraint,  to  compel  the  Queen  to  change  her 
measures  or  counsels,   or  to   intimidate  or  overawe 

'  Ex  parte  Bollroan,  4  Cranch  (U.  S  )  75. 
2  Burr's  Trial,  401.    See  also  1 1  Law  Reporter,  p.  41.3. 
8  United  States  /■  Greathouse,  2  Abb.  C.  Ct.  364. 
1  United  States  v  Hodges,  2  Wheeler's  Cr.  Caa  *  7  7 ;  Roberta's  Case, 
1  Dall.  (Pa.)  39;  McCarty's  Case,  -J.  Dall.  (Pa. J  *6. 


TREASON.  113 

both  Houses  or  either  House  of  Parliament;  and, 
3d.  Attempting,  by  an  insurrection  of  whatever  kind, 
to  effect  any  general  public  object.  But  an  insurrec- 
tion, even  conducted  in  a  warlike  manner,  against  a 
private  person,  for  the  purpose  of  inflicting  upon 
him  a  private  wrong,  is  not  levying  war,  in  a  trea- 
sonable sense. 

Adhering  to  the  Queen's  enemies  is  held  to  be 
active  assistance  within  or  without  the  realm  to  a 
public  enemy  at  war  with  the  Queen.  Rebels  may 
be  public  enemies,  within  the  meaning  of  the  rule.1 

§  137.  Who  may  Commit.  —  Treason  involves  a 
breach  of  allegiance ;  a  foreigner  not  in  the  country 
cannot  therefore  be  guilty  of  the  crime.  But  even 
an  alien  owes  allegiance  to  the  laws  of  the  country 
in  which  he  is,  and  is  bound  to  abide  by  them.  He- 
may  therefore  be  guilty  of  treason  by  giving  aid  and 
comfort  to  an  enemy  of  that  country.2 

§  138.  Misprision  of  Treason  is  the  concealment, 
by  one  having  knowledge,  of  any  treason  committed 
or  (in  some  of  the  States)  contemplated,  or  the  failure 
to  make  it  known  to  the  government.3 

§  139.  Evidence.  —  The  rule  is  incorporated  into 
the  Constitution  of  the  United  States,  and  into  those 
of  most  of  the  States,  that  treason  can  only  be  proved 
by  the  evidence  of  two  witnesses  to  the  same  overt 
act,  or  by  confession  in  open  court.  Unless  the 
overt  act  is  so  proved,  all  other  evidence  is  irrel- 
evant.4    But  an  overt  act  being  proved  by  two  wit- 

1  Stephen's  Dig.  Cr.  Law,  arts.  5.3  and  54. 

2  Carlisle  v.  United  States,  16  Wall.  147. 

8  See  the  Constitutions  and  statutes  of  the  several  States. 
*  United  States  v.  Burr,  4  Cranch,  493. 
8 


114  CRIMINAL    LAW. 

ness)  s,  ill  other  requisite  facts  may  be  proved  by  the 
testimony  of  a  single  \\  itness. ' 

The  common  law  rule  was  that  there  must  be  two 
witnesses;  but  it  was  held  sufficient  it'  one  testified 
to  one  overl  act,  and  another  to  another.  And  this 
may  be  the  rule  now  in  those  States  whose  constitu- 
tions or  statutes  do  not  contain  the  explicit  Language 
of  tin'  Constitution  of  the  United  States.'-  The  ordi- 
nary rules  of  evidence  generally  prevail  in  the  proof 
of  misprisions.8 

A  confession  not  in  court  maybe  proved  by  the 
testimony  of  one  witness,  as  corroborating  oilier  tes- 
timony in  the  case;  but  in  th  >se  Slates  prohibiting 
conviction  unless  upon  confession  in  open  court,  it 
cannot  be  made  the  substantive  ground  of  convic- 
tion.4 

BRIBERY. 

§  140.  Bribery  is  a  misdemeanor  at  common  law,6 
and  has  generally  been  defined  as  the  offering  or 
receiving  any  undue  reward  to  or  by  any  person 
whose  ordinary  profession  or  business  relates  to  the 
administration  of  public  justice,  in  order  to  influence 
bis  behavior  in  office,  and  induce  him  to  act  con- 
trary to  the  known  rules  of  honesty  and  integrity.0 
But  in  more  modern  times  the  word  has  received  a 
much  broader  interpretation,  and  is  now  held  to 
mean  tb ruptly  offering,  soliciting,  or  receiving 

i  United  Stairs  ,-.  Mitchell,  ii  Dall   (Pa.)  348 

-  Sta)    7  Will.  til.  c.  :;.  §  -J:  R.  S.  New  York,  vol.  ii.  p.  S90,  §  15; 
3  Greenl.  I'.w,  £  I'M',,  and  notes. 
3  ,i  Greenl.  Ev.,  §  217. 

<  Roberts's  Case,  1  Dall.  (Pa.)  89;  McCarty's  Case,  2  Dall.  (Pa.)  86. 
6  l  Bawk  1'  <'..  bk.  I,  c.  r.7.  §  6. 
6  Cok.-,  3d  [nat.  L45  ;  .'J  Greenl.  Et.,  §  71. 


BRIBERY.  115 

of  any  undue  reward  as  a  consideration  for  the  dis- 
charge of  any  public  duty.  Strictly  speaking,  an 
offer  to  give  or  receive  a  bribe  is  only  an  attempt,1 
and  the  receipt  of  a  bribe  is  the  consummated  offence. 
But  as  long  ago  as  1678  a  standing  order  of  the 
ILiuse  of  Commons  made  it  bribery  as  well  to  offer 
as  to  receive,  and  so  at  the  present  day  either  the 
offering  or  receiving  is  held  to  constitute  the  offence. 
By  undue  reward  is  meant  any  pecuniary  advan- 
tage, direct  or  indirect,  beyond  that  naturally  at- 
tached to  or  growing  out  of  the  discharge  of  the 
duty.  Thus,  voting  is  a  public  duty,  and  though  no 
compensation  is  allowed,  yet  by  the  exercise  of  the 
right  one  may  promote  the  public  welfare,  and  thus 
indirectly  his  own.  But  if  he  sells  or  promises  to 
sell  his  vote  in  consideration  of  any  other  private  re- 
ward, it  is  an  abuse  of  the  trust,  and  an  indictable 
offence;2  as  where  A.  votes  for  B.  for  one  office,  in 
consideration  of  B.'s  vote  for  A.  for  another.3  And 
bribery  even  of  a  member  of  the  nominating  conven- 
tion of  u  political  party  seems  criminal  at  common 
law.4  And  the  buying  or  promising  to  buy  the  vote 
is  equally  an  offence,  though  the  person  sidling  re- 
fuses to  perform  the  contract,5  or,  if  a  legislator,  has 
no  jurisdiction  in  the  premises,6  or  in  point  of  fact 
has  no  right  to  vote.7     So  where  a  candidate  for  pub- 

1  Walsh  v.  People,  65  111.  58 

2  Regina  <;.  Lancaster,  16  Cox  C.  C.  737  ;  State  v.  Jackson,  73  Me.  91. 

3  Com.  v.  Callaghan.  2  Va.  Cas.  460. 

4  Com.  v.  Bell,  22  Atl   Rep.  641  ;  s  c.  145  Pa.  374. 

5  Sulston  v-  Norton,  3  Burr.  1235;  Henslow  v.  Fawcett,  3  Ad.  & 
El.  51. 

6  State  v.  Ellis,  4  Vroom  (N.  J.)  102. 

7  Combe  v.  Pitt,  3  Burr.  1586. 


HO  CRIMINAL  LAW 

lie  oflfice  offered,  in  case  of  his  election,  to  serve  for 
less  than  the  salary  provided  by  law  for  the  office, 
whereby  the  taxes  would  be  diminished,  this  wsls 
held  to  be  within  the  spirit  of  the  law  againsi  brib- 
ery.1 So  conduct  inducing  or  tending  to  induce 
corrupl  official  anion,  as  the  offer  of  money  to  one 
having  the  power  of  appointmenl  to  office,  to  influ- 
ence his  action  thereon;2  or  to  a  sheriff  or  his  sub- 
ordinate having  the  custody  of  prisoners,  to  induce 
him  to  connive  at  their  escape;3  or  to  a  customs 
officer,  to  induce  him  to  forbear  making  a  seizure  of 
goods  forfeited  by  violation  of  the  revenue  laws.1 
The  theory  of  our  governmenl  is  that  all  public  sta- 
tions are  trusts,  and  that  those  clothed  with  them 
are  to  be  actuated  in  the  discharge  of  their  duties 
solely  by  considerations  of  right,  justice,  and  the 
public  go  >d  :  and  any  departure  from  the  line  of  rec- 
titude in  this  behalf,  and  any  conducl  tending  to 
induce  such  departure,  is  a  public  wrong.5  The  offer 
of  money  to  induce  a  public  officer  to  resign  office, 
the  intent  being  that  the  defendant  might  he  ap- 
pointed in  his  place,  is  criminal  bribery.6  Under 
the  statute"  which  prohibits  the  payment  of  money 
to  a  voter  to  induce  him  to  vote,  it  has  been  held  to 

1  State  '••  Purdy,  36  Wis  213.  Bui  see  Dishorn;  Smith,  10  Iowa, 
212,  where  gh  ing  a  note  to  the  county  as  an  indncemenl  t"  the 
people  to  vote  for  the  removal  of  the  county  seal  was  held  nol  to 
be  bribery 

2  Rex  v   Vaughan,  t  Hun-  2494;  Rex  v.  Pollman,  2  Camp  229. 
a  Rex  v.  Beale,  l  East,  I 

4  Rex  v.  Everett,  3  B  &  C  lit  See  also  Caton  >■  Stewart,  76 
N.  C. 

»  Trisl  v  Child,  21  Wall.  (U   S.)  mi 

6  Regina  v  Mercer,  17  Op.  Can.  Q   1!  602  [semble). 

7  17  &  is  Vict.  c.  L02. 


EXTORTION  AND   OPPRESSION.  117 

be  an  offence  to  pay  the  travelling  expenses  of  the 
voter  to  and  from  the  polling  places.1 

EXTORTION    AND    OPPRESSION. 


§  141.  Extortion  is  the  demanding  and  taking  of 
an  illegal  fee,  under  color  of  office,  by  a  person 
clothed  by  the  law  with  official  duties  and  privi- 
leges.2 The  fee  is  illegal,  if  demanded  and  taken 
before  it  is  due,  or  if  it  be  a  greater  amount  than  the 
law  allows,  and,  of  course,  if  not  allowed  at  all  by 
law.  Thus,  it  is  extortion  for  a  justice  of  the  peace 
to  exact  costs  where  they  are  not  properly  taxable, 
or  from  the  party  to  whom  they  are  not  taxable;3  or 
for  a  jailor  to  obtain  money  of  his  prisoner  by  color 
of  his  office  ; i  or  for  a  ferryman 5  or  miller  6  to  collect 
tolls  not  warranted  by  custom;  or  for  a  county  treas- 
urer to  exact  fees  for  acts  required  in  the  collection 
of  taxes,  but  which  had  not  been  done;7  or  for  a 
coroner  8  or  sheriff  to  refuse  to  do  their  official  duty 
unless  their  fees  are  prepaid;9  or  to  demand  and  re- 
ceive fees  where  none  are  by  law  demandable. 10  So  it 
is  extortion  for  an  officer  to  avail  himself  of  his  offi- 
cial position  to  force  others,  by  indirect  means,  to 

i  Cooper  v.  Slide,  6  H.  L.  C.  746. 

2  Ming  v.  Trnett,  1  Mont.  322  ;  Rex  v.  Baines,  6  Mod.  192. 

3  People  v.  Whaley,  6  Cow.  (N.  Y.)  661  ;  Respublica  v.  Hannum, 
1  Yeates  (Pa  )  71. 

4  Rex  v.  Broughton,  Trem.  P.  C.  111. 

5  Rex  v.  Roberts,  4  Mod.  101. 

6  Rex  v.  Burdett,  1  Ld.  Raym.  148. 

7  State  v.  Burton,  3  Ind.  93. 

8  Rex  i:  Harrison,  1  East  P.  C.  382. 

y  Hescott's  Case,  1  Salk.  330  ;  Com.  v.  Bagley,  7  Pick.  (Mass.)  279 ; 

State  v.  Vasel,  47  Mo.  41G,  444  ;  State  v.  Maires,  4  Vroom  (N.  J.)  142. 

10  Simmons  v.  Kelley,33  Pa.  190 ;  Com.  v.  Mitchell,  3  Bush  (Ky.)  25. 


1  [8  CRIMINAL    LAW. 

contribute  to  his  pecuniary  advantage  to  an  amount 
and  iu  a  manner  not  authorized  by  law;    as,  for  in- 
.  for  a  sheriff  to  receive  a  consideration  from 
A.  for  accepting  A.  as  bail  for  ('.,  whom  he  has  ar- 
rested.1    That   the   illegal   fee   is   in  the   form  of  a 
-  iii,  or  other  valuable  thing  than  money,  is  im- 
material;2   unless  the  gift    be  voluntary/'  in   which 
there  is  no  offence  committed.      Bv  a  very  stricl 
const  met  ion.  the  taking  a  promissory  note  for  illegal 
fees  is  held  not  to  constitute  the  offence,  as  the  note 
is  void,   cannot  be  enforced,  ami  is  therefore  of  no 
value1     And   the  taking  must   he   with  a  wrong  in- 
tent." and  not  through  mistake  of  fact  (i  or  of  law.7 

^  1  1J.  Oppression  is  such  an  abuse  of  discretionary 
authority  by  a  public  officer,  from  an  improper  mo- 
tive, as  consists  in  inflicting  any  other  injury  than 
extortion.  Thus,  where  a  judge  inflicts  an  excessive 
sentence  from  unworthy  motives,  he  is  guilty  of  op- 
pression.8 So  where  a  publi  r  refuses  to  issue 
a  license  loan  inn-keeper  because  he  does  not  vote 
as  the  officer  wishes,  the  is  guilty  of  o|>pivs- 
sion.9     And  so  where  a  magistrate   punishes  a  de- 

i  Stotesbury  v.  Smith,  2  Burr.  '.»24  ;  lux  v.  Higgins,  4  C.  &  1'.  247  , 
Rex  v.  Burdett,  l  Ld.  Raym.  148;  People  v.  Calhoun,  3  Wend.(N.Y.) 
420;   Rex  v.  Loggen,  l  Stra.  73. 
1  Sid.  307. 
Com        D(  nnie,  Th.  Cr.  Cas.  (W  - 

;    v.  Cony,  2  Mass.  523.     But   see   Empson  r.  Bathurst,   Hut. 
52  :  <  '"in.  v.  Pease,  1«',  Mass.  91. 

0  Respublica  v.  Hannum,  1  Yeates  (Pa.)  71  ;  Cleaveland  v.  State,  34 
Ala.  254  :  5  Blackf.  |  Ind.)  460. 

•    Bowman  v.  Blythe,  7  E.  &  B.  26. 

7  Sen.'  i\  (  tin.  r,  36  N.J.  125;  People  v.  WTialey,  6  Cow.  (X.V  } 661 
Steph.  Dig.  Cr.  Law.  §  119  (1). 
.  r.  Williams,  2  Burr.  1317. 


BARRATRY.—  CHAMPERTY.  — MAINTENANCE.     H9 

fendant  without  pursuing  the  forms   of  law,   he   is 
guilty  of  oppression.1 

BARRATRY.  CHAMPERTY.  MAINTENANCE. 

§  143.  Barratry,  Champerty,  and  Maintenance  are 
kindred  offences.  The  encouragement  of  strife  was 
regarded  by  the  common  law  as  a  matter  of  public 
concern,  and  it  interposed  to  punish  and  prevent  it. 
There  were  two  special  forms  which  this  encourage- 
ment assumed :  one,  where  a  stranger  in  interest 
takes  part  in  the  promotion  of  a  controversy  under 
an  agreement  that  he  shall  have  part  of  the  proceeds, 
is  called  champerty,  because  it  is  an  agreement 
campum  part  ire, — to  divide  the  spoils;  the  other, 
where  one  officiously  and  without  just  cause  inter- 
meddles with  and  promotes  the  prosecution  or  de- 
fence of  a  suit  in  which  he  has  no  interest,  is  called 
maintenance. 

Barratry  is  habitual  champerty  or  maintenance, 
and  is  committed  where  one  has  become  so  accus- 
tomed to  intermeddle  in  strifes  and  controversies  in 
and  out  of  court  that  he  may  be  said  to  be  a  com- 
mon mover,  exciter,  or  maintainor  of  suits  and  quar- 
rels; as  one  becomes  a  common  scold  by  the  too 
frequent  and  habitually  abusive  use  of  the  tongue, 
or  a  common  seller  of  liquor,  by  habitually  selling  it 
in  violation  of  law.  A  single  act  is  sufficient  upon 
which  to  maintain  an  indictment  either  for  cham- 
perty or  maintenance ;  but  a  series  of  acts,  not  less 
than  three,  are  necessary  to  constitute  the  habit, 
which  is  the  gist  of  the  crime  of  barratry.2 

1  Rex  v.  Okey,  8  Mod.  46. 

2  4  Bl.  Com.  134,  135  ;  Com.  v.  Davis,  11  Pick.  (Mass.)  432;  Com 


120  CRIMINAL  LAW. 

The  offence  of  barratry  may  be  committed  by  a 
justice  of  the  peace  who  stirs  up  prosecutions  to  be 
had  before  himself  for  the  sake  of  fees;3  and,  it 
seems,  by  one  who  unnecessarily,  and  for  the  pur- 
pose of  opposing  his  adversary,  brings  numerous 
ungrounded  suits  in  his  own  right.2 

§144.  Interest.  —  The  intervention,  in  order  to 
constitute  the  crime  of  maintenance,  must  be  with- 
out interest.  It'  one  may  be  prejudiced  by  the  result 
of  the  suit,  or  has  a  contingenl  interesl  therein,  as 
if  a  vendee  has  warranted  title  to  the  vendor,  he  has 
an  interesl  which  justifies  the  intervention.3  So  if 
the  party  intermeddling  lias  a  special  interest  in  the 
general  question  to  be  decided,  though  noi  otherwise 
in  the  result  of  the  particular  suit,  his  intervention 
is  not  unlawful.4  In  short,  if  the  party  have  any 
interest,  legal  or  equitable,  though  it  be  bul  a  con- 
tingenl interest,  he  may  assist  another  in  a  lawsuit, 
Any  substantial  privity  or  concern  in  the  suit  will 
justify  him.0  So  where  a  creditor  of  a  bankrupt 
took  an  assignment  oi'  a  righl  of  action  from  the 
trustee  in  bankruptcy,  agreeing  to  sue  al  his  own 
expense  and  pay  one  fourth  of  what  wns  realized  to 
the  trustee,  is  not  champertous,  since  the  creditor  has 
an  interest.1' 

>-.  McCulloch,  1")  Mass.  227;  Com.  u.  Tubbs,  1  Cusb.  (Mass.)  2:  Case 
<>l  Barretry,  8  Coke,  36,  which  contains  much  of  bhe  earl}  learning  mi 
:ln'  subject. 

ite  '•.  Chitty,  l  Bail.  (S.  C. 
om.  r.  McCulloch,  15  Muss.  227:   1  Hawk.  P.  C,  c.  81,  $  •'!. 

8  Master  v.  Miller,  IT.  R.320;  Goods] 1  v.  Fuller,  46  Me.  141; 

Williamson  '-.  Sammons,  34  Ala.  691 

*  Gowen  >•.  Nowell,  i  Greenl.  (Me.)  2:12 ;  Davies  v.  Stowell,  17  N.W. 
370;   -   i     78  Wis  334. 

*  Wickham  v.  Conklin,  8  Johns.  (N.  V.)  220. 
r>  Gny  v.  Churchill,  10  Ch.  i>  481. 


BARRATRY.  —  CHAMPERTY.  —  MAINTENANCE.     121 

§  145.  Officious.  —  The  intervention  must  also  be 
officious,  and  without  just  cause.  If,  therefore,  the 
relationship  of  the  parties  or  their  circumstances  be 
such  as  to  warrant  the  belief  that  the  intervention  is 
of  a  friendly  kind,  in  the  interest  of  justice,  and  to 
prevent  oppression,  it  will  not  now  —  whatever  may 
have  been  the  extravagant  notions  of  the  old  law- 
yers,1 adopted  under  the  pressure  of  the  opinion  that 
such  intervention  tended  to  the  formation  of  com- 
binations calculated  to  obstruct  if  not  overawe  the 
courts  —  be  held  to  be  criminal.2  The  intervention  is 
not  officious  or  unjustifiable,  if  prompted  by  personal 
sympathy  growing  out  of  relationship,  or  long  asso- 
ciation, as  between  master  and  servant,3  or  by  mo- 
tives of  charity.4  The  common  law  of  champerty 
and  maintenance  is  still  recognized  in  some  of  the 
States,  though  a  much  less  degree  of  interest  will 
now  justify  the  intervention  than  formerly.5  And, 
in  these  States  an  agreement  by  an  attorney  to  carry 
on  a  lawsuit,  making  no  disbursements,  and  to  look 
to  a  share  of  the  proceeds  for  the  compensation  of 
his  services,  is  held  to  be  clearly  champertous.6 
Other  States,  however,  deny  that  the  law  of  mainte- 
nance and  champerty  was  ever  applicable  to  this 
country,  and  refuse  to  recognize  it  as  in  force.7 

1  1  Hawk.  P.  C,  c.  83,  §  4  et  seq. 

2  Lathrop  v.  Amherst  Rank,  9  Met.  (Mass.)  489. 

3- Campbell  v.  Jones,  4  Wend.  (N.  Y.)  306;  Thallhimer  v.  Brinker- 
hoff,  .3  Cow.  (N.  Y.)  623. 

1  Perine  v.  Dunn,  3  Johns.  Ch.  (N.  Y.)  508. 

5  Lathrop  v.  Amherst  Bank,  9  Met.  (Mass.)  489 ;  Wood  v.  McGuire, 
21  Ga.  576. 

6  Lathrop  v.  Amherst  Bank,  9  Met.  (Mass  )  489.  See  also  Elliott  v. 
McClelland,  17  Ala.  206;  Martin  v.  Clarke,  8  R.  I.  389. 

7  Danforth  v.  Streeter,  28  Vt.  490 ;   Bayard  v.  McLean,  3  Harr. 


122  CRIMINAL   LAW. 

In  poinl  of  fact,  the  tendency  is  to  disregard  the 
common  law,  except  so  Ear  as  it  may  have  been 
adopted  by  statute;1  and  it   may  be  doubted  it'  any 

indictment  would  now  be  maintained  tor  champerty 
or  maintenance,  not  coming  strictly  within  the 
limits  of  some  precedent.  The  practices  oui  of 
which  originated  the  common  and  early  English 
statute  laws  againsl  the  offences  of  champerty  and 
maintenance  —  among  which  a  common  one  was  for 
a  party  litigani  to  interest  some  "greal  person  "  to 
come  in  and  aid  him  to  overwhelm  his  antagonist  by 
giving  him  a  share  of  the  proceeds  —  are  no1  now  so 
common  as  to  require  the  interposition  of  the  aid  of 
the  criminal  law.  And  it  is.  to  say  the  Least,  very 
doubtful  whether,  at  the  presenl  day,  an  indictmenl 
for  either  offence,  pure  and  simple,  and  unattended 
h\  circumstances  of  aggravation  which  would  amount 
to  a  hindrance  or  perversion  of  justice,  would  be 
sustained   in  any   of  our  courts.2 

Questions  concerning  them  have  usually  arisen  in 
civil  actions,  in  which  a  champertous  contract  has 
been  set  up  as  a  defence.  And  here  the  courts  are 
inclined,  without  much  regard  to -the  old  common 
law  precedents,   to  hold  such  contracts  as  are   clearly 

(Del  )  139;  Wrighl  v   Meek,  3  Greene  (Iowa), 472;  Sherley  v.  Riggs, 

1 1  Humph.  (Tenn.)  53  ;  Key  v.  Vattier,  l  <  Ihio,  132  ;  Newkirk  v.  < ' ■. 

[8  III  449;  Stanton  i\  Sedgwick,  14  X.  Y.  289;  Bentinck  v.  Franklin, 
38  Tex    158;  Schomp  v.  Schenck,  40  N.  J.  195  ;    Richardson  i'    Row- 
land, 10  I  !onn.  565     See  also  note  to  the  last  cited  case,  2  <  rreen1 
Law  Rep.  i'.e>.  for  some  interesting  details  of  the  state  of  society  out 
of  which  grewthe  law  of  maintenance  aud  other  analogous  crimes. 
1  Si  e  note  to  Richardson  v.  Rowland,  14  Am.  L.  Reg.  v  -   78 
-  Note  to  Richardson  u    Rowland,  2  Green's  Cr.   Law  Rep.  495; 
Maybin  v.  Raymond,  i.">  \at.  Bkr.  Reg.  (U.  S.C.C1  .  South  Disk  Miss.) 
354;  2  Bish.  Cr.  Law,  7th  ed.,  SS  125,  12G. 


EMBRACERY.  12b 

against   a   sound   public    policy,   and  only  such,   as 
champertous. 1 

Thus,  where  an  attorney  agrees  to  carry  on  a  suit 
at  his  own  expense  for  a  share  of  the  proceeds,  this 
seems  generally  held  to  be  champertous;2  but  not 
where  the  expense  is  to  be  borne  by  the  party.3  And 
even  in  such  case,  if  the  suit  is  against  the  govern- 
ment, and  there  is  no  danger  that  a  "great  person  " 
may  bear  down  and  oppress  a  weak  defendant,  the 
reason  of  the  law  failing,  the  rule  itself  fails ;  and 
accordingly  it  has  been  recently  held  that  an  agree- 
ment by  an  attorney  to  carry  on  a  suit  against  the 
United  States  in  the  Court  of  Claims,  at  his  own 
expense,  for  a  portion  of  the  proceeds,  is  not  cham- 
pertous.4 Nor  is  an  agreement  to  pay  an  attorney 
a  fixed  sum  for  his  services  "  out  of  the  proceeds  of 
sales  of  the  property  [real  estate],  as  such  proceeds 
shall  be  realized."  5 

EMBRACERY. 

§  146.  Embracery  is  an  attempt,  by  corrupt  means, 
to  induce  a  juror  to  give  a  partial  verdict.  Any 
form  of  tampering  with  a  jury,  whether  successful 
or  not  is  immaterial,  constitutes  the  crime.6  The 
means  most  commonly  resorted  to  are  promises,  en- 

1  Key  v.  Vattier,  1  Ohio,  132. 

2  Martin  v.  Clarke,  8  R.  I.  389;  Stearns  v.  Felker,  28  Wis.  594; 
Lancy  r.  Havender,  146  Mass.  615. 

3  Winslow  v.  Ry.  Co.,  71  Iowa,  197;  Aultman  v.  Waddle,  40  Kan. 
195. 

4  Maybin  v.  Raymond,  15  Nat.  Bkr.  Reg.  354.  So  of  the  Court  of 
Alabama  Claims:  Manning  v.  Sprague,  148  Mass.  18. 

5  McPherson  r.  Cox,  96  U.  S.  404. 

6  1  Hawk.  P.  C,  8th  ed.  466. 


124  CRIMINAL   LAW. 

tertainments,  presents,  and  the  like.  But  any  means 
c  ilculated  and  intended  to  cause  a  juryman  to  swerve 
from  his  duty,  if  used,  will  make  the  person  using 
them  for  that  purpose  indictable  at  common  law. 
As  the  crime  is  in  itself  an  attempt,  it  is  comp] 
whether  successful  or  not  in  its  purpose,  whether 
the  verdict  be  just  or  unjust,  and  even  if  there  be  no 
verdict.1  A  juror  may  lie  guilty  of  embracery,  by  the 
use  of  corrupt  and  unlawful  methods  of  influencing 
his  fellows,  or  of  obtaining  a  position  on  the  jury 
with   intent    to   aid   either   party.2 

I'KIMI  i;v. 

§  147.  "Perjury,  by  the  common  law,  scemeth  to 
be  a  wilful  false  oath,  by  one  who,  being  lawfully  re- 
quired to  depose  the  truth  in  any  proceeding  in  a 
course  of  justice,  swears  absolutely,  in  a  matter  of 
some  consequence,  to  the  poinl  in  question,  whether 
he  be  believed  or  not."3  Modern  legislation  has  al- 
lowed persons  having  conscientious  scruples  against 
taking  an  oath  to  substitute  an  affirmation  for  the 
oath. 

An  oath  is  a  declaration  of  a  fact  made  under  the 
religious  sanction  of  an  appeal  to  the  Supreme  Being 
for  its  t  ruth. 

.1/;  affirmation  is  substantially  like  an  oath,  omit- 
ting the  sanction  of  an  appeal  to  the  Supreme  Being, 
and  substituting  therefor  the  "pains  and  penalties  " 
of  perjury. 

i  State  v.  Sales,  _'  Nev.  268  :  Gibbs  v.  Dewey,  5  Cow   (X.  V.)  503. 

2  Me  x  r.  Opie  et  ;il  ,  I  Saund.  301. 

3  i  Hawk. P.  C,  8th  ed.  t29;  Com  v  Pollard,  12  Met.  (Mass.)  225 ; 
State  v   Wall,  9  Terg   (Tenn  I  347     State  r  Simons,  SO  Vl    I 


PERJURY.  125 

The  proper  form  of  administering  either  is  that 
which  is  most  binding  on  the  conscience  of  the 
affiant,  and  in  accordance  with  his  religious  belief. 
But  the  form  is  not  essential,  even  though  it  be 
prescribed  by  statute,  if  there  be  a  substantial 
compliance,  —  the  prescription  being  regarded  as 
directory  merely.1  And  therefore,  if  a  book  other 
than  the  Evangelists  be  unwittingly  used,  it  does  not 
vitiate  the  oath.2  Nor  can  a  prosecution  for  perjury 
be  sustained  upon  testimony  given  orally  which  the 
law  requires  to  be  in  writing,3  nor  upon  an  affidavit 
not  required  by  law.4  But  when  the  witness  is  sworn 
generally  to  tell  the  truth,  instead  of  to  make  true 
answers,  according  to  the  usual  practice,  false  testi- 
mony is  still  perjury.5 

§  148.  Lawfully  required.  —  But,  to  be  valid,  the 
oath  must  be  administered  by  a  court  or  magistrate 
duly  authorized.  If  a  court  having  no  jurisdiction 
of  the  person  or  subject  matter,  or  magistrate  not 
duly  authorized  or  qualified,  administer  the  oath,  it 
has  no  binding  force  or  legal  efficacy,  and  no  prose- 
cution for  perjury  can  be  predicated  upon  it.  It  is 
extra-judicial  if  the  law  does  not  require  the  oath, 
or,  the  oath  being  required,  if  an  unauthorized  person 
administers  it.6      But  if  jurisdiction  and  authority 

i  Com.  v.  Smith,  11  Allen  (Mass.)  243;  Rex  v.  Haly,  1  C.  &  D. 
(Ire.)  199. 

2  People  v.  Cook,  4  Seld.  (N.  Y.)  67 ;  Ashhurn  v.  State,  15  Ga.  246. 

3  State  v.  Trask,  42  Vt.  152 ;  State  v.  Simons,  30  Vt.  620. 

*  Ortner  v.  People,  6T.&C  (N.  Y.  S.  C.)  548  ;  People  v.  Gaige,  26 
Mich.  30. 

5  State  v.  Keene,  26  Me.  33. 

6  People  v.  Travis,  4  Parker  C.  C.  213  ;  State  v.  Hay  ward,  1  N.  & 
McC.  (S.  C.)  546;   Com.  i>.  Pickering,  8  Gratt.  (Va.)  628;   Muir  v. 


126  CRIMINAL   LAW. 

exist,  formal   irregularities  —  as  where  the  witness 
is  sworn  to  tell  the  truth  and  bhe  whole  truth,  omit- 
ting from  the  oath  the  words  '•and  nothing  but  the 
truth,"  '  or  there  is  error  in  some  of  the  proceedin 
of  which  the  oath  is  a  part-  —  are  immaterial. 

vj  i  !'.».  "Judicial  Proceeding"  embraces  net  only  the 
main  proceeding,  bul  also  subsidiary  proceedings  in- 
cidental thereto ;  as  a  motion  for  continuance,8  or  an 
affidavit  initiatory  of  a  proceeding4  or  in  aid  uf  one 
pending,5  or  a  motion  tor  removal6  or  for  a  new 
trial,"  or  a  hearing  in  mitigation  of  sentence8  or  for 
taking  bail,9  or  on  a  preliminary  inquiry  as  to  the 
competency  of  a  witness  or  juror.10  It  also  embra 
any  proceeding  wherein  an  oath  isrequired  by  stat- 
ute, if  the  oath  is  to  an  existing  fact,  and  not  merely 
promissory.11     It  has  also   been   held   to  embraces 

State,  s  Blackf.  (Ind.)  154;  Pankey  v.  People,  l  Scammon  (111.)  80; 
United  States  v.  Lai>rork,  4  McLean  (('.  Ct.)  113;  State  v.  Pluramer, 
50  Me.  217;  State  v.  Wyatt,  2  Hay.  (N.C.)  56;  United  States  v.  How- 
ard, 37  Fed.  Rep.  666;   Lamberl  v   People,  76  X.  V.  220. 

i  Staic  r.  Gates,  17  X.  H.  373 

-  State  v.  Lavalley,  9  Mo.  824.  See  also  United  States  v.  Babcock, 
4  McLean  (C.Ct.)  113;  States  Hall,7  Blackf.(Ind.)25;  State  v.  Day- 
ton, 3  Zabr.  (X.  J.)  49;  Van  Steenbergh  v.  Kurtz,  lo  Johns.  (N.  Y.) 
1G7. 

a  State  i7.  Shupe.  16  Iowa,  36;  Sanders  v  People,  124  111.  218. 

4  Rex  v.  Parnell,2  Burr  806;  Carpenter  v.  State,  4  How.  (Miss.) 
163. 

6  White  r.  State,  1  S.  &  M..  (Miss.)  149;  Rex  v.  White,  M.  &  M. 271. 
e  Pratt  v.  Price,  11  Wend.  (X.  Y.)  1^7. 

7  Stat.'  /•.  Chandler,  42  Yt.  446. 

e  r.  Keenan,  8  Rich.  (S.  C.)  456. 
9  Com.  v.  Hatfield,  107  Mass.  227. 

i°  Com.  r.  Stockley,  10  Leigh   (Va.)   678;    State  ,-.  Wall,  9  Yerg. 
(Tenn.)  347. 

11  Rex  v.  Lewis,  l  Strange,  70;  State  >■  Dayton,  3  Zabr.  (N.J.)  49; 
O'Bryan  v.  State,  27  Tex.  App.  339;  Averj  v.  Ward,  150  Mass.  160. 


PERJURY.  127 

proceeding  required  or  sanctioned  by  "the  common 
consent  and  usage  of  mankind."  1 

§  150.  Wilfully  False.  —  The  oath  must  bo  wilfully 
false  to  constitute  the  offence.  If  it  be  taken  by 
mistake,  or  in  the  belief  that  it  is  true,  or  upon 
advice  of  counsel,  sought  and  given  in  good  faith, 
that  it  may  lawfully  be  taken,  the  offence  is  not 
committed.2 

Some  authorities  hold  that  one  may  commit  per- 
jury notwithstanding  he  believes  what  he  swears  to 
be  true,  if  it  be  made  to  appear  that  he  had  no  prob- 
able cause  for  his  belief.3  But  it  certainly  cannot 
be  considered  as  established  law,  that  one  who  swears 
inconsiderately,  or  rashly,  or  even  negligently,  to 
what  he  believes,  though  upon  very  insufficient  data, 
to  be  true,  is  guilty  of  perjury.4 

Oaths  of  office,  being  in  the  nature  of  promises  of 
future  good  conduct,  and  not  affirming  or  denying 
the  truth  or  falsehood  of  an  existing  fact  within  the 
knowledge  of  the  affiant,  do  not  come  within  the  pro- 
vision of  the  law  of  perjury.5 

It  is  immaterial  whether  the  witness  gives  his  tes- 

1  State  v.  Stephenson,  4  McC.  (S.C.)  165  ;  Arden  v.  State,  11  Conn. 
408. 

2  Tuttle  v.  People,  36  N.Y.  431  ;  United  States  v.  Conner,  3  McLean 
(C.  Ct.)  573  ;  Hood  v.  State,  44  Ala.  81  ,  Cothran  v.  State,  39  Miss.  541. 

3  State  v.  Knox,  Phil.  (N.  C.)  312;  People  v.  McKinney,  3  Parker 
C.  C.  510;  Com   v.  Cornish,  6  Binn.  (Pa.)  249. 

4  Com.  v.  Brady,  5  Gray  (Mass.)  78  ;  United  States  v.  Shellmire,  1 
Eald.  (C.  Ct.)  370 ;  State  v.  Lea,  3  Ala.  602  ;  State  v.  Cockran,  1  Bailey 
(S.  C.)  50;  Com.  v.  Cook,  1  Rob.  (Va.)  729  ;  United  States  v.  Atkins, 
1  Sprague,  558  ;  Jesse  v.  State,  20  Ga.  156;  United  States  v.  Stanley, 
6  McLean  (C  Ct.)  409;  1  Hawk.  P.  C,  c.  69,  §  2  ;  State  v.  Chamber- 
lain, 30  Vt.  559  ;  Com.  v.  Thompson,  3  Dana  (Ky.)  301. 

6  1  Hawk.  P.  C,  8th  ed.  431  ;  State  v.  Dayton,  3  Zabr.  (N.  J.)  49. 


228  CRIMINAL   LAW. 

timony  voluntarily  or  under  compulsion,  if  his  testi- 
mony be  required  by  law,1  as  when  he  voluntarily 
gives  privileged  testimony;2  as  also,  it  has  been 
held,  whether  he  is  legally  competenl  or  incompetent 
to  testily,  if  his  testimony  be  actually  taken.3  But 
this  lasl  proposition  is  not  universally  accepted  as 
sound.  Tims,  if  a  party  to  the  record  be  sworn,  the 
law  not  admitting  him  as  a  competenl  witness,  false 
testimony  by  him  is  no  perjury.1  So  it  has  been 
held  that  it  is  no  perjury  to  swear  falsely  to  a  place 
of  residence  in  obtaining  a  certificate  of  naturali- 
zation, the  oath  to  that  fact  being  voluntary  ami 
immaterial  under  the  law.5  Ho  if  an  immaterial 
allegation  of  fact  be  introduced  ami  sworn  to  in  a 
petition  to  court6  Nor  will  a  false  answer  in  chan- 
cery, the  Will  not  calling  for  a  sworn  answer,  amounl 
to  perjury.7  Swearing  that  a  certain  fact  is  tine 
according  to  the  affiant's  knowledge  and  belief,  is 
perjury,  if  lie  knows  to  the  contrary,  or  if  he  believes 
to  the  contrary,  even  though  the  fad  be  true.8  So, 
perhaps,  if  he  have  no  knowledge  or  belief  in  the 
matter.9 

§  151.    Materiality.  —  Thai  is  material  which  tends 

>  Com   o.  Knight,  12  Mass.  274. 
-  Mackin  v.  People,  115  111.  312 

3  Chamberlain  v.  People,  23  N.  T.  85 ;  Montgomery  v.  State,  10  Ohio, 
220;  State  v.  Molier,  1  Dev.  (X.  C.)  263. 

4  State  v.  Hamilton,  7  Mo.  300. 

6  State  v.  Belle,  2  Hill  (S.  C.)  290. 

e  Gibson  v.  State,  it  Ala.  17.     Sec  also  Stale  <-.  Hamilton,  7  Mo  300. 

'   Silver  V.  State,  17  Ohio,  365. 

8  state  y.Crnikshank,6Blackf.(Ind.)62;  Patrick  v  Smoke, 3 Strobh. 
(S.C.)  117:  United  States  v.  Shellmire,  I  Bald  (C  ('i  (370;  Wilson 
„.  Nations,  5  Yerg   (Tenn.)211;  Rex  v.  Pedley,  1  Leach,  325. 

9  state  r.  Gates,  17  N.  II.  373;  l  Hawk.  P.  C,  8th  ed.  433. 


PERJURY.  129 

to  prove  or  disprove  any  fact  in  issue,  although  this 
fact  be  not  the  main  fact  in  issue,  but  only  inciden- 
tal. Thus,  where  a  woman  was  charged  with  lar- 
ceny, and  the  defence  was  that  the  goods  stolen 
belonged  to  her  husband,  falsely  swearing  by  the 
alleged  husband  that  he  had  never  represented  that 
she  was  his  wife  is  perjury,  whether  she  was  or  was 
not  in  fact  his  wife.  And  it  is  also  material  whether 
it  has  any  effect  upon  the  verdict  or  not.1  So  where 
three  persons  were  indicted  for  a  joint  assault,  and 
it  was  contended  that  it  was  immaterial,  if  all  par- 
ticipated in  it,  by  which  certain  acts  were  done,  it 
was  held  that  evidence  attributing  to  one  acts  which 
were  done  by  another  was  material.2  So  all  answers 
to  questions  put  to  a  witness  on  cross-examination, 
which  bear  upon  his  credibility,  are  material.3  But 
substantial  truth  is  all  that  is  necessary,  and  slight 
variations  as  to  time,  place,  or  circumstance  will 
not,  in  general,  be  material ;  as  where  one  swears  to 
a  greater  or  less  number,  or  a  longer  or  shorter  time, 
or  a  different  place,  or  a  different  weapon,  than  the 
true  one,  —  these  circumstances  not  bearing  upon  the 
main  issue.4  A  false  statement  as  to  the  terms  of  a 
contract  which  is  void  by  the  Statute  of  Frauds, 
made  in  a  proceeding  to  enforce  the  contract,  has 
been  held  to  be  immaterial,  and  no  perjury,  which- 
ever way  the  party  swears,  the  contract  being  void ; 5 

1  Com.  v.  Grant,  116  Mass.  17;   Wood  v.  People,  59  N.  Y.  117; 
1  Hawk.  P.  C,  8th  ed.  433. 

2  State  v.  Norris,  9  N.  H.  96. 

3  Regina  v.  Overton,  C.  &  M.  655. 

4  1  Hawk.  P.  C,  c.  69,  §  8. 

5  Rex  v.  Dunston,  Ry.  &  M.  109. 

9 


130  CRIMINAL  LAW. 

while  a  like  false  statement  in  a  proceeding  to  avoid 
the  contraci  would  be  material.1  And  the  fact  that 
an  indictment  is  had,  or  that  a  judgment  is  reversed, 
does  n. >t  affect  the  question  of  the  materiality  of  the 
evidence  given  to  sustain  it;2  nor  does  the  fad  that 
the  evidence  is  withdrawn  from  the  c  '<e.:'  Whether 
materiality  is  a  question  of  law  for  the  court,  or  of 
fact  for  a  jury,  is  a  point  upon  which  the  authorities 
are  about  equally  di\  ided. ' 

8  152.  Evidence.  --  In  prosecutions  for  perjury,  a 
single  witness  (contrary  to  the  general  rule  of  evi- 
dence) to  the  falsehood  of  the  alleged  oath  is  not 
sufficient  to  maintain  the  case,  since  this  would  be  but 
oath  against  oath.  There  must  he  two  witnesses  to 
the  falsity,  or  circumstances  corroborating  a  single 
witness;5  though  all  other  material  facts  may  be 
proved  by  a  single  witness,  as  in  other  eases.1'  Nor 
can  a  man  be  convicted  of  perjury  by  showing  that 
he  has  sworn  both  ways.  It  must  be  shown  which 
was  the  false  oath." 

§  153.  Subornation.  —  Subornation  of  perjury  is  the 
procuring  of  perjured   testimony.       In  order  to  the 

1  Regina  v.  Fates,  C.  &  M.  132. 

-  Regina  v.  Meek,  9  C.  &  P.513;  Com.  ».  Tobin,  108  Mass,  426. 

:;  Regina  v.  Phillpotts,  3  C.  &  K.  135. 

4  Set-  the  cases  collected  in  2  Greenl.  Ev.  (13th  ed.),  §  196,  n.;  also 
2  Bish  Cr.  Law.  §  1039c 

5  Stab'  v.  Raymond,  20  [owa,  582  ;  Com.  v.  Pollard,  12  Mot.  (Mass.) 

State  ».  Molier,  1  Dev.  (\.  C.)  263;  State  v.  Heed,  57  Mo.  252; 
Stater.  Peters,  I07N.C.876;  United  States  v.  Hall,  44  Ped.Rep.864 

6  United  States  v.  Hall,  44  Fed.  Rep.  8C4. 

7  Regina  v.  Hughes,  1  C.  &  K.  519;  Jackson's  I  ase,  I  I  ewin,  '-'70; 

v.  J.  B.,  l  Tyler  (Vt.)  200 ;    State  v.  Williams,  30  Mo. 
Schwartz  »  Com.,  27  Gratt.  (Va  )  L025.     But  see  People  u    Burden, 
'.i  Barb.  (N.T.)  467,  which,  however,  is  examined  and  denied  to  be  law 
in  Schwartz  r.  Com.,  ubi  sup 


CONTEMPT.  131 

incurring  of  guilt  under  this  charge,  it  must  appear 
that  the  party  procuring  the  false  testimony  kneAV, 
not  only  that  the  testimony  would  be  false,  but  also 
that  it  would  be  corrupt,  or  that  the  party  giving  the 
testimony  would  knowingly,  and  not  merely  igno- 
rantly,  testify  falsely.1  And  a  conviction  may  be  had 
upon  the  testimony  of  a  single  witness,2  unless  that 
witness  be  the  party  who  committed  the  perjury ;  in 
which  case  he  will  need  corroboration.3  But  a  per- 
son cannot  be  convicted  of  attempted  subornation  of 
perjury  by  proof  that  he  attempted  to  procure  a  per- 
son to  swear  falsely  in  a  suit  not  yet  brought,  but 
which  he  intended  to  bring.  There  must  be  some 
proceeding  pending,  or  the  procured  false  testimony 
must  constitute  a  proceeding  in  itself.4 

CONTEMPT. 

§  154.  Contempt  of  Court  is  a  crime  indictable  at 
common  law  when  it  amounts  to  an  obstruction  of 
public  justice,  and  it  is  also,  in  many  cases,  sum- 
marily punishable,  without  indictment,  by  the  court, 
when  its  rules  are  violated,  its  authority  defied,  or 
its  dignity  offended. 

It  is  the  latter  class  of  cases  which  constitute 
what  are  technically  called  contempts  of  court,  and, 
though  not  well  defined,  may  be  said  to  embrace  all 
corrupt  acts  tending  to  prevent  the  court  from  dis- 
charging its  functions. 

1  Com.  r.  Douglass,  5  Met.  (Mass.)  241  ;  Stewart  v.  State,  22  Ohio 
St.  477. 

2  Com.  v.  Douglass,  ubi  supra. 

3  People  v.  Evans,  40  N.  Y.  1. 

4  State  v.  Joaquin,  69  Me.  218;  People  v.  Chrystal,  8  Barb.  (N.  Y. 
S  C.)  545.     But  see  State  v.  Whittemore,  50  N.  H.  245. 


132  CRIMINAL   LAW. 

In  the  former  case,  it  belongs  to  the  category  of 
crimes,  though  not  bearing  any  specific  name,  and  is 
included  in  the  general  class  of  offences  against 
public  justice. 

In  the  latter  case,  it  is  not  strictly  a  crime, 
though  substantially  so.  being  punishable  by  line 
and  imprisonment,  —  but  is  noticed  summarily 
the  courts  as  an  infraction  of  order  and  decorum, 
which  every  court  has  the  inherent  power  to  punish, 
within  certain  limits,  — a  power  necessary  to  their 
efficiency  and  usefulness,  and  resorted  to  in  case  of 
violation  of  their  rules  and  orders,  disobedience  of 
their  process,  or  disturbance  of  their  proceedings.1 
Since  it  is  not  a  crime,  a  party  accused  is  not  en- 
titled to  trial   by   jury.2 

§  155.  What  are  Contempts.— All  disorderly  conduct, 
or  conduct  disrespectful  to  the  court,  or  calculated 
to  interrupt  or  essentially  embarrass  its  business, 
whether  in  the  court -room  or  out  of  it,  yet  so  near  as 
to  have  the  same  effect, — such  as  making  noises  in 
its  vicinity,8  refusal  by  a  witness  to  attend  court,1  or 
to  he  sworn  or  to  testify/'1  or  id'  any  officer  of  court 

J  Exparte  llobinson.  19  Wall  (U.S.)  •"><»■">:  s.  c  'J  Green's  Cr  Law 
Rep.  1.'!.").  In  Pennsylvania  it  is  held  that  a  courl  not  of  record,  as  a 
jnstice  of  the  peace,  has  nol  the  power  to  proceed  summarilj  t<>  punish 
for  contempt,  the  power  nol  being  necessary,  as  the  justice  maj  pro- 
ceed immediately  t"  bind  over  for  indictment.  Bui  the  case  is  unsup- 
ported elsewhere,  and  must  stand,  if  it  can  stand  at  all,  upon  - 
peculiarity  of  the  statutes  <>f  that  State 

-  McDonnell  v.  Henderson,  74  Cowa,  619;  In  >■<■  Deaton,  105 
N.  C.  :>'<. 

*  State  v.  Coulter,  Wrighl  (Ohio)  421. 

*  Johnson  v.  Wideman,  Dudley  (S. ''.)  70. 

&  Stanshury  v.  Marks.  -2  Dull  (U.S.)  213;  Lott  V.  Barrel,  2  Mill 
(S.  C.)  167  ;  Exparte  Stice,  70  I  al  51 


CONTEMPT.  133 

to  do  his  duty,1  or  of  a  person  to  whom  a  habeas 
corpus  is  directed  to  make  return,2  —  assaulting  an 
officer  of  the  court,  or  any  other  person  in  its  pres- 
ence,3 or  one  of  the  judges  during  recess,4  —  improp- 
erly communicating  with  a  juror,5  or  by  a  juror  with 
another  person,6  —  will  usually  be  dealt  with,  upon 
their  occurrence,  pendente  lite,  in  order  to  prevent 
the  evil  consequences  of  a  wrongful  interference  with 
the  course  of  justice. 

In  other  cases,  proceedings  more  or  less  summary 
will  be  had,  whenever  a  corrupt  attempt,  by  force, 
fraud,  bribery,  intimidation,  or  otherwise,  is  made 
to  obstruct  or  impede  the  due  administration  of  jus- 
tice. Thus,  the  courts  will  take  notice  of,  and 
punish  in  a  summary  way,  the  use  by  an  attorney  of 
contemptuous  language  in  the  pleadings,7  or  a  resort 
to  the  public  press  in  order  to  influence  the  pro- 
ceedings in  a  pending  case,8  or  any  libellous  publi- 
cation, though  indictable  as  such,  relative  to  their 
proceedings,  tending  to  impair  public  confidence  and 
respect  in  them.9  So  the  courts  will  intervene  in 
like  manner  if  attempts  are  made  to  bribe  or  intimi- 

1  Chittenden  v.  Brady,  Ga.  Dec.  219. 

2  State  v.  Philpot,  Dudley  (Ga.)  46. 

8  People  v.  Turner,  1  Cal.  152;  Ex  parte  Terry,  128  U.S.  289. 

4  State  v.  Garland,  25  La.  Ann.  532. 

5  State  v.  Doty,  32  N.  J.  403. 

6  State  v.  Helvenston,  R.  M.  Charlt.  (Ga.)  48. 

7  State  v.  Keeue,  11  La.  596. 

8  Matter  of  Darby,  3  Wheeler  Cr.  Cas.  1. 

9  State  i'.  Morrill,  16  Ark.  384;  State  v.  Earl,  41  Ind.  464;  In  re 
Sturock,  48  N.  H.  428;  Oswald's  Case,  1  Dall.  (Pa.)  319;  People  v. 
Freer,  1  Caines  (N.  Y.)485;  People  v.  Wilson,  64  111.  195;  s.  c.l  Am. 
Cr.  Rep  107  ;  Regina  v.  Shipworth,  12  Cox  C.  C.  371  ;  s.  c.  1  Green's 
Cr.  Law  Rep.  121 ;  In  re  Moore,  63  N.  C.  397  ;  In  re  Cheeseman,  49  N.  J. 
L.  115. 


134  CRIMINAL   LAW. 

date  a  judge,  juror,  or  any  officer  of  court,  in  relation 
to  any  matter  pending  before  them,  or  upou  which 
they  are  to  ad  officially.1  They  will  also  punish  the 
circulation  of  a  printed  statement  of  a  pendin 
before  trial,  by  one  of  the  parties  to  the  prejudice  of 
the  other;2  the  publishing  a  report  of  the  proceed- 
ings of  a  trial,  contrary  to  the  direct  order  of  court  ; :i 
or  publishing  such  proceedings  with  comments  cal- 
culated to  prejudice  the  rights  of  the  parties;4  the 
preventing  the  attendance  of  a  witness,  after  sum- 
mons, or  procuring  his  absence,  so  that  he  could  not 
be  summoned;6  procuring  of  a  continuance  by  a  false 
pretence  of  illness;6  and,  generally,  all  such  ads  of 
any  and  all  persons  as  tend  substantially  to  interfere 
with  their  efficient  service  in  the  administration  of 
justice  for  which  they  are  established. 

§  156.  Contempt  of  Process.  —  One  is  guilty  of  con- 
tempt, and  punishable  therefor,  who.  being  served 
with  process  by  a  court  of  competent  jurisdiction, 
wilfully  and  improperly  refuses  to  obey  the  process.7 
Thus  a  refusal,  after  service  of  the  writ  or  notice  of 
the  making  of  the  order  or  decree,  to  obey  an  injunc- 
tion/ a  decree  or  order  of  court,'''  or  a   writ    of  pro- 

1  Charlton's  Case,  2  M.  &  C.  316;  Regina  v.  Onslow,  12  Cox  <'.  I '. 
358;  -.  C.  1  Cn,,,'-  Cr.  Law  Rep.  110;  State  r.  Doty,  32  X.  J.  403. 

'-'  Rex  v.  Jolliffe,  4  'I'.  R.  285  :  Cooper  v.  People,  13  <  !oL  337,  373  ; 
ii  Bank,  44  Ch.  Div.  649. 

:  I',  .      Clement,  4  B.  &  Aid.  218. 

4  Regina  '•.  O'Dogherty,  ">  Cox  C.  C.  348. 

6  McConnell  v.  State,  46  [nd.  298;  State  v.  Buck,  62  N.  II.  670; 
In  re  Savin,  131  U.  S.  267. 

o  Welch  v.  Barber,  52  Conn,  l  17. 

"  2  Bish.  Crim.  Law.  §  242. 

8  Winslow  v.  Nayson,  113  Mass.  411. 

»  Buff  am's  Case,  13  Nll.it;  Mayor  of  Bath  v.  Pinch,  4  Scott,  299  j 


CONTEMPT.  135 

hibition  or  mandamus,1  is  contempt.  It  is  likewise 
contempt  for  an  inferior  court  to  disobey  the  orders 
of  a  superior  court ; 2  or  for  an  officer  of  court,  as  a 
receiver,  to  disobey  the  order  of  the  court.3 

§  157.  Contempt  of  Jury.  —  One  may  be  punished 
for  contempt  by  reason  of  misconduct  before  the 
grand  jury,4  or  by  publishing  a  libel  on  the  grand  or 
petit  jury.5  And  it  is  contempt  for  a  reporter  to 
conceal  himself  in  the  jury  room,  and  to  report  the 
deliberations  of  the  jurors.6 

§  158.  Proceedings.  —  When  the  contempt  is  com- 
mitted in  the  presence  of  the  court,  the  offender  may 
be  ordered  into  custody,  and  proceeded  against  at 
once. 

But  if  the  offence  be  not  committed  in  presence  of 
the  court,  the  offender  is  usually  proceeded  against 
by  an  attachment  preceded  by  an  order  to  show  cause, 
but  without  an  order  to  show  cause  if  the  exigency 
.demands  it." 

Whether  proceedings  will  be  had,  in  the  last  class 
of  cases,  for  a  contempt  whereby  the  proceedings  in  a 
particular  case  are  improperly  obstructed  or  other- 
wise interfered  with  after  the  case  is  concluded,  is 

Stuart  v.  Stuart,  123  Mass.  370;  Kunckle  v.  Kunckle,  I  Dall.  (Pa.)  364; 
Yates  v.  Russell,  17  Johns.  (N.  Y.)  461. 

i  Rex  v.  Edyveau,  3  T.  R.  352  ;  Rex  v.  Babb,  3  T.  R.  579 ;  Board 
of  Commissioners  of  Leavenworth  v.  Sellew,  99  U.  S.  624;  State  v. 
Judge  of  Civil  District  Court,  38  La.  Ann.  43. 

2  Patchin  v.  Mayor  of  Brooklyn,  13  Wend.  664. 

3  Cartwright's  Case,  114  Mass.  230. 
*  In  re  Gannon,  69  Cal.  541. 

6  In  re  Cheeseman,  49  N.  J.  L.  115  ;  Little  v.  State,  90  Ind.  338. 
«  People  v.  Barrett,  56  Hun,  351. 

?  State  v.  Matthews,  37  N.  H.  450 ;  People  v.  Kelly,  24  N.  Y.  74  ; 
Whittem  v.  State,  36  Ind.  196;  Welch  v.  Barber,  52  Conn.  147, 


136  CRIMINAL   LAW. 

perhaps  no1  perfectly  clear;  but  the  better  opinion 
ms  i"  be  that  they  may,  a1  any  time  before  the 
adjournment  of  the  court  for  the  term  at  which  the 
contempt  is  committed.1  In  a  case  apparently  to 
tlic  contrary2  there  was  no  contempt,  and  the  dictum 
is  not  supported  by  the  citation  of  any  authority. 

RESCUE.  —  ESCAPE.  —  PRISON    BREACH. 

§  159.  These  are  analogous  offences  under  the 
general  category  of  hindrances  to  public  justice. 
Few  cases  at  common  law  have  occurred  in  this 
country,  the  several  offences  being  generally  matter 
of  statutory  regulation. 

§  160.  Rescue  is  "the  forcibly  and  knowingly  tree- 
ing another  from  an  arrest  or  imprisonment."8  If, 
therefore,  the  rescuer  supposes  the  imprisonment  to 
be  in  the  hands  of  a  private  person,  and  uol  of  an 
officer,  In'  is  not  guilty,  as  the  imprisonment  must 
be  a  lawful  one.4  It  is  essential  that  the  deliverance 
should  be  complete,  otherwise  the  offence  may  be  an 
attempt  merely.6 

$  L61.  Escape  is  the  going  away  without  force  out 
of  his  place  of  lawful  confinement  by  the  prisoner 
himself,  or  the  negligent  or  voluntary  permission  by 
the  officer  having  custody  of  such  going  away.6     The 

1  Regina  v.  O'Dogherfcy,  5  Cox  C  C  348;  Clarke'   Case,  12  Cush. 
(Mass  |  320;  Johnson  v.  Wideman,  Dudley  (<".a  )  70. 
-  Robi  rtson  v.  Bingley,  i   McCord  (S.C.J  Ch  333 
»  4  Bl  Com.  131. 
4  Stair  v.  Hilton,  20  Mo.  100 
Murray,  15  Me   ino. 
Com   v  Sheriff,  l  Grant  (Pa.)  187;  state  >■    Doud,  7  Conn    384; 
l-'i'  Stati    16(    inn  47;  Nail  v  Statc,:;i  Ala  262;  Luckeyu  State, 

14  Texas,  100 


RESCUE.  -  ESCAPE.  —  PRISON  BREACH.  137 

escape  must  be  from  a  lawful  confinement.  And  if 
the  arrest  be  by  a  private  person  without  warrant, 
though  legal,  yet  if  the  custody,  without  bringing 
the  party  before  a  magistrate,  be  prolonged  for  an 
unreasonable  period,  the  escape  will  be  no  offence ; 
and  although  it  seems  to  have  been  held,  in  this 
country,  that,  after  an  arrest  voluntarily  made  by  a 
private  person  without  warrant,  he  may  let  the  pris- 
oner go  without  incurring  guilt,  by  the  common 
law  1  such  private  person  will  be  guilty  if  he  do  not 
deliver  over  the  arrested  party  to  a  proper  officer.2 
If  the  warrant  on  which  the  arrest  is  made  be  void, 
neither  the  prisoner  nor  the  officer  is  liable  for  an 
escape.3 

§  162.  Prison  Breach  is  the  forcible  breaking  and 
going  away  out  of  his  place  of  lawful  confinement  by 
the  prisoner.  It  is  distinguished  from  escape  by  the 
fact  that  there  must  be  a  breaking  of  the  prison. 
There  must  also  be  an  exit,4  in  order  to  constitute 
the  offence.  The  imprisonment  must  be  lawful,  but 
it  is  immaterial  whether  the  prisoner  be  guilty  or 
innocent.5 

A  prison  is  any  place  where  a  person  is  lawfully 
confined,  whether  it  be  in  the  stocks,  in  the  street, 
or  in  a  public  or  private  house.  Imprisonment  is 
but  a  restraint  of  liberty.6 

1  Habersham  v.  State,  56  Ga.  61. 

2  2  Hawk.  P.  C,  c.  20,  §§  1-6. 

3  Housh  t;.  People,  75  111.  487  ;  Hitchcock  v.  Baker,  2  Allen  (Mass.) 
431 ;  State  v.  Leach,  7  Conn.  452  ;  Com.  v.  Crotty,  10  Allen  (Mass.)  403. 

«  2  Hawk.  P.  C,  c.  18,  §  12. 

5  Com  v.  Miller,  2  Ash.  (Pa.)  61  ;  Habersham  v.  State,  56  Ga.  61  ; 
Regina  v.  Waters,  12  Cox  C.  C  390.  Upon  the  general  subject  see 
2  Hawk.  P  C,  c.  18-21  ;  1  Gab.  Cr.  Law,  305  et  seq. 

e  2  Hawk.  P.  C,  c  18,  §  4. 


138  CRIMINAL  LAW. 

At  common  law,  the  punishment  of  the  several 
offences  was  the  same  as  would  have  been  inflicted 
upon  the  escaped  or  rescued  prisoner.1  It  is  now, 
however,  generally  a  subject  of  special  statute  regu- 
lation. 

1  2  Hawk.  P.  C,  c.  19,  §  22,  Cum.  v.  Miller,  2  Ash.  (Pa.)  61. 


AFFRAY. 


139 


CHAPTER   IV. 

OFFENCES  AGAINST   THE   PUBLIC   TRANQUILLITY,   HEALTH, 
AND    ECONOMY. 


§  164.  Affray. 

165.  Riot.  —  Rout.  —  Unlawful 
Assembly. 

167.  Forcible   Entry  and  De- 
tainer. 

171.  Eavesdropping. 


§  172.  Libel  and  Slander. 

177.  Engrossing.  — Forestalling. 

—  Regrating. 

178.  Nuisance. 
183.  Attempt. 
186.  Conspiracy. 


§  163.  All  offences  against  the  public  peace  are 
criminal,  as  has  been  seen ; 1  but  the  law  protects  not 
only-  the  physical  peace  of  the  public,  but  also  the 
established  order  and  economy  of  the  government. 
As  part  of  this  established  order,  the  public  trade 
seems  to  some  extent  to  be  protected;  at  least, 
against  such  combinations  and  conspiracies  as  indi- 
viduals cannot  protect  themselves  against. 

Attempts  and  conspiracies  are  crimes  of  this  class, 
being  acts  prejudicial  to  the  general  well-being  of  the 
State. 

AFFRAY. 

§  164.  An  Affray  is  the  fighting,  by  mutual  con- 
sent, of  two  or  more  persons  in  some  public  place,  -to 
the  terror  of  the  people.2     The  meaning  of  the  word 

1  Ante,  §  14. 

2  Wilson  v.  State,  3  Heisk.  (Tenn.)  278;  Simpson  v.  State,  5  Yer£. 
(Term.)  356 ;  4  Bl.  Com.  146. 


140  <  RIMINAL  LAW. 

is,  thai  which  frightens;  and  the  offence  consists  in 
disturbing  the  public  p  ace  by  bringing  on  a  state  of 
fear  by  means  of  such  fighting,   or  such  threats  of 
fighting  as  are  calculated  to  excite  such  fear,  whether 
there  be  actual  fear  or  not  being  immaterial.     Mere 
wordy  dispute,   therefore,   without    actual  or  tin 
ened  violence  by  one  party  or  the  other,  does  i    I 
amount    to  an  affray.1     But  if  actual  or  threatened 
violence    is    resorted    to   by    one    who    is    provoked 
thereto  by  the  words  of  the  other,  this  will  make 
latter  guilty.2     It  is  sometimes  held  that  consent  is 
not  essential.3     But  it  is  obvious  that  one  who  is 
saulted,  and    merely  uses   such    force  as   is   necessary 

to  beat  off  his  assailant,  is  guilty  of  no  offence.  Be 
is  not  fighting,  in  the  sense  of  the  definition,  but  is 
merely  exercising  his  right  of  sel  •  e. ' 

The  place  must  be  a  public  one.  A  held,  there- 
fore, surrounded  by  a  dense  wood,  a  mile  away  from 
any  highway  or  other  public  place,  does  not  lose  its 
private  character  by  the  casual  presence  of  three  per- 
sons, two  of  whom  engage  in  a  fight.6  An  enclosed 
lot.  however,  in  full  view  of  the  public  street  of  a 
village,  thirty  yards  distant,6  is  a  public  place, 
though  a  highway  itself  is  not   necessarily  a  public 

1  State  v.  Sumner,  5  Strobh.  (S.  C.)  53 ;  Hawkins  v.  State,  13  Ga 
322  ;  State  v.  Downing,  7t  N.  C.  L84. 

-  State  r.  Sumner,  5  Strobh.  (S.  C.)  53  ;  Hawkins  v.  State,  13  Ga. 
322;  State  v.  Downing,  74   X   C.  184;   State  v.  Perry,  5  Jo 
9;  State  v.  Fanning,  94  N.C.  940.     Bui  Bee,  contra,  O'Neill  v.  State,  16 
AJa.  65. 

2  Overt.  (Tenn  |  198 

1  See  also  Klum  v.  State,  I  Blackf.  (Ind.)  377. 

6  Taylor  v.  State,  22  Ala.  15.  See  also  Statu  v.  Ileilin,  8  Humph. 
(Tenn  )  84. 

v,  ile  v.  State,  35  Ala 


RIOT.  — ROUT.  — UNLAWFUL  ASSEMBLY.         14l 

place,  because  by  disuse,  or  the  undergrowth  of  trees, 
or  otherwise,  it  may  have  become  concealed  from 
public  view.1  A  fight  begun  in  private,  and  con- 
tinued till  a  public  place  is  reached,  becomes  an 
affray. 2 

By  the  definition,  it  requires  two  to  make  an 
affray.  If,  therefore,  one  of  two  indicted  persons  be 
acquitted,  the  case  fails  as  to  the  other.3 

RIOT. ROUT. UNLAWFUL    ASSEMBLY. 

§  165.  A  Riot  is  a  tumultuous  disturbance  of  the 
peace,  by  three  or  more  persons  assembling  together 
of  their  own  authority,  with  an  intent  to  assist  one 
another  against  any  one  who  shall  oppose  them  in  the 
execution  of  some  enterprise  of  a  private  nature,  and 
afterwards  actually  executing  the  same  in  a  violent 
and  turbulent  manner,  to  the  terror  of  the  people, 
whether  the  act  itself  be  lawful  or  unlawful.4 

A  Rout  is  a  similar  meeting  upon  a  purpose  which, 
if  executed,  would  make  them  rioters,  and  which 
they  actually  make  a  motion  to  execute.  It  is  an 
attempt  to  commit   a   riot. 

An  Unlawful  Assembly  is  a  mere  assembly  of  per- 
sons upon  a  purpose  which,  if  executed,  would  make 
them  rioters,  but  which  they  do  not  execute,  or 
make  any  motion  to  execute.5 

A  like  assembly  for  a  public  purpose,  as  where  it 
is  the  intent  of  a  riotous    assembly  to  prevent  the 

1  State  v.  Weekly,  29  Ind.  206. 

2  Wilson  v.  State,  3  Heisk.  (Tenn.)  278. 

8  Hawkins  v.  Stale,  13  Ga.  322.     See  also  §  165. 

*  1  Hawk.  P.  C,  8th  ed.,  513,  §  1  ;  State  v.  Russell,  45  N.  H.  83 

5  1  Hawk.  P.  C,  8th  ed.,  513-516,  §§  1,  8,  9  ;  4  Bl.  Com.  146. 


142  CRIMINAL  LAV,r. 

sution  of  a  law  by  force,  or  to  release  all  pris- 
oners in  the  public  jail,  is  treason.1 

It  has  been  held  thai  an  unlawful  assembly,  armed 
with  dangerous  weapons,  and  threatening  injury,  to 
the  terror  of  the  people,  amounts  to  a  riot,  even 
before  it  proceeds  to  the  use  of  force.2 

Two  persons,  it  has  also  been  held,  with  a  third 
aiding  and  abetting,  may  make  a  riot.3 

That  the  assembly  is  in  its  origin  and  beginning  a 
lawful  one  is  immaterial,  if  it  degenerate,  as  it  may. 
into  an  unlawful  and  riotous  one.4 

§  166.  The  Violence  necessary  to  constitute  a  riot 
need  not  be  actually  inflicted  upon  any  person. 
Thre  tt<  uing  with  pistols,  or  clubs,  or  even  by  words 
or  gestures,  to  injure  if  interfered  with  in  the  prose- 
cution of  the  unlawful  purpose,  or  any  other  demon- 
stration calculated  to  strike  terror  and  disturb  the 
public  peace,  is  a  sufficient  violence  to  constitute  the 
assembly  riotous.5  So  where  several  attempt  by 
threats  and  menaces  to  rescue  a  lawful  prisoner, 
they  are  guilty  of  a  riot.0  Indeed,  it  has  been  held 
that  a  trespass  to  property  in  the  presence  of  a  per- 
son in  actual  possession,  though  there  is  no  actual 

i  4  Bl.  Com.  l  17  ;  Judge  King's  Charge,  4  Pa.  L.  J.  29,  an  admi- 
rable paper. 

2  Com.  v.  Hershberger,  Lewis  Cr.  L.  (Pa.)  72;  State  u.  Brazil,  Rice 
(S.  C.)  257. 

3  State  v.  Straw.  .'!.'!  Me.  554. 

4  Judge  King's  Charge,  4  La  L.  J.  31  :  State  v.  Snow,  18  Me  346; 

Regina  o.  Soley,  'J  Salk.  594;   Sta ,   Brooks,  l    Hill  (S.  C.)  361; 

l   Hawk.   1'.  ('.,  sili  ed.,  514,  §3.     lint  Bee  State  v.  Stalcup,  l  Led. 
(N.  C.)  30. 

s  State  v.  Calder,  2  McCord  (S.  C.)  462;  state  ».  Jacks..,,,  I  Speei 
(S.  C.)  18;  Bell  v.  Mallory,  61  III.  ir>7:  Rex  v.  Bughea,4G.4  P.873. 
«  Fisher  v.  State,  78  (Ja.  258. 


FORCIBLE   ENTRY   AND   DETAINER.  143 

force,  amounts  to  a  riot.1  The  disturbance  of  the 
peace  by  exciting  terror,  is  the  gist  of  the  offence.2 
To  disturb  another  in  the  enjoyment  of  his  lawful 
right  is  a  trespass,  which,  if  done  by  three  or  more 
persons  unlawfully  combined,  with  noise  and  tumult, 
is  a  riot;  as  the  disturbance  of  a  public  meeting,3  or 
making  a  great  noise  and  disturbance  at  a  theatre 
for  the  purpose  of  breaking  up  the  performance, 
though  without  offering  personal  violence  to  any 
one;4  or  even  the  going  in  the  night  upon  a  man's 
premises  and  shaving  his  horse's  tail,  if  it  be  done 
with  so  much  noise  and  of  such  a  character  as  to 
rouse  the  proprietor  and  alarm  his  family.5 

Violent  threatening,  and  forcible  methods  of  en- 
forcing rights,  whether  public  or  private,  are  not 
lawful.6 

FORCIBLE    ENTRY    AND    DETAINER. 

§  167.  This,  though  not  strictly  a  common  law 
offence,  was  made  so  at  an  early  date  by  statute  in 
England;  and  is  now  in  many  of  the  States,  by 
adoption,  a  part  of  their  common  law.  It  consists 
in  "  violently  taking  or  keeping  possession  of  lands 
and  tenements,  with  menaces,  force  and  arms,  and 
without  the  authority  of  law. "  7 

1  State  v.  Fisher,  1  Dev.  (N.  C.)  504. 

2  State  v.  Renton,  15  N.  H.  169  ;  State  v.  Brooks,  1  Hill  (S.  C.)  361. 

3  State  v.  Townsend,  2  Harr.  (Del)  543;  Com.  v.  Runnels,  10 
Mass.  518;  State  v.  Brazil,  Rice  (S.  C.)257;  Judge  King's  Charge, 
4  Pa.  L.  J.  29,  38. 

4  Clifford  v.  Brandon,  2  Camp.  358;  State  v.  Brazil,  Rice  (S.  C.) 
257. 

5  State  v.  Alexander,  7  Rich.  (S.  C.)  5. 

6  Judge  King's  Charge,  4  Pa.  L.  J.  29,  31. 
f  4  Bl.  Com.  148. 


144  CRIMINAL   LAW. 

§  1G8.  Force  and  Violence.  —  The  entry  or  detainer 
must,  in  order  to  constitute  an  indictable  offence,  be 
with  such  force  and  violence,  or  demonstration  of 
force  and  violence,  threatening  a  breach  of  the  peace 
or  bodily  harm,  and  calculated  to  inspire  fear,  and 
to  prevent  those  who  have  the  right  of  possession 
from  asserting  or  maintaining  their  right,  as  to  be- 
come a  matter  of  public  concern  in  contradistinction 
to  a  mere  private  trespass.1  Such  force  as  will  tend 
to  a  breach  of  the  peace  may  not  be  used;  bul  only 
such  force  is  permissible  as  would  sustain  a  plea  in 
justification  of  molliter  manus  imposuit.2  That  de- 
gree of  force  which  the  law  allows  a  man  to  use  in 
defence  of  his  lawful  possession,  it  does  not  allow 
him  to  use  in  recovering  property  of  which  he  has 
been  dispossessed,  if  it  he  tumultuous  or  riotous, 
or  tends  to  ;i  breach  of  the  peace.  It  does  n<>t  al- 
low a  breach  of  the  peace  to  regain  possession  of 
property,  or  in  redress  of  private  wrongs.8  Like 
circumstances  accompanying  the  detention  of  the 
possession  of  real  property  will  constitute  a  forci- 
ble  det. •liner.4 

It  is  immaterial  how  the  intimidation  is  produced, 
whether  by  one  or  many,  by  actual  force  or  by 
threats,  or  by  tumultuous  assemblies,  or  by  weapons, 

'  Com.  v.  Shattuck,  I  Cosh.  (Mass.)  Ill  ;  State  v.  Pearson,  2  X.  II. 
550;  Com.  v.  Keeper,  &c.,l  Ashm.  (Pa.)  140;  -  ■  •  Cargill,  2  Brev. 
(S.  C.)  445;  i  Hawk.  P.  C,  c.  28,  §27:  Benedict  v.  Hart,  l  Cush. 
(Mass  I  487  :  Wood  v.  Phillips,  13  X.  Y.  152. 

-  Fifty  Associates  v.  Rowland,  5  Cnsh.  (Mass  )  21  I. 

;!  Sampson  v.  Henry,  II  Pick.  (Mass.)  379;  Gregory  v.  Hill,8T.R. 
29!i ;  Hyatt  v.  Wood,  3  Johns.  (X.  V.)  239;  3  Bl.  Com.  i:  Davis  v. 
Whitridge,  2  Strobh.  (S.  C.)  232. 

*  l  Hawk  P.  C,  mIi  ed.,  c,  28,  §30;  People  v  Rickert,  8  Cow. 
(N.  Y.)  226;  Com.  v.  Dudley,  10  Mass.  103. 


FORCIBLE   ENTRY   AND   DETAINER.  145 

or  in  whatever  way  it  may  be  produced,  provided 
it  actually  occurs,  or  might  reasonably  be  expected 
to  occur,  if  the  parties  entitled  to  possession  should 
be  present  and  in  a  position  to  be  affected  by  it. 
And  entry  and  detainer  by  such  demonstrations  of 
force  and  violence  are  equally  indictable,  although 
no  one  be  actually  present  and  in  possession  of  the 
premises  entered  to  be  intimidated  thereby.1 

Nor  need  the  display  of  force  be  upon  the  actual 
premises ;  for  if  the  owner  be  seized  and  kept  away, 
for  the  purpose  of  thwarting  his  resistance,  and  an 
entry  be  then  made  during  such  enforced  absence, 
though  peaceably,  it  will  amount  to  a  forcible  entry 
and  detainer.2  And  a  peaceable  entry  followed  by  a 
forcible  expulsion  of  the  owner  will  also  constitute 
the  offence.3  The  threats  of  violence  must  be  per- 
sonal. No  threats  of  injury  to  property  will  be 
sufficient.4 

§  169.  What  may  be  entered  upon  or  detained.  — 
Peaceable  occupancy,  without  reference  to  title,  is 
the  possession  which  the  law  says  shall  not  be  taken 
away  or  detained  by  force.5  And  this  possession 
may  be  constructive  as  well  as  actual ;  as  where  the 
owner  of  a  building,  which  he  does  not  personally 
occupy,  but  rents  to  tenants,  while  waiting  for  a  new 
tenant,  is  forcibly  kept  out  by  a  stranger  and  tres- 

1  People  v.  Field,  52  Barb.  (N.  Y.)  198;  1  Hawk.  P.  C,  8th  ed.. 
c  28,  §§  26,  29. 

2  Ibid. 

3  3  Bac.  Abr.,  For.  Entry  (B). 

4  1  Hawk.  P.  C,  8th  ed.,  c.  28,  §  28. 

5  Bex  v.  Wilson,  8  T.  R.  357  ;  People  v.  Leonard,  11  Johns.  (N.Y.) 
504 ;  Beauchamp  v.  Morris,  4  Bibb  (Ky)  312 ;  State  v.  Pearson,  2  N.  H. 
550;  Com.  v.  Bigelow,  3  Pick.  (Mass.)  31. 

10 


14G  CRIMINAL  LAW. 

passer.1  More  custody,  however,  is  not  enough. 
Therefore,  if  a  servanl  withholds  possession  against 
Ins  employer,  the  Latter  is  not  guilty  of  the  offence 
in  asserting  his  righl  to  the  possession  which  is 
already  his,  and    which    the   servant    lias  not.2      So  it' 

the  owner  has  gained  peaceable  possession  of  the 
main   house,   this  carries  with   it    the    possession  of 

whole;    and    lie    is   not    liable   under   the    law    for 

the  forcible  entry  of  a  shed  adjoining,  in  which  a 
tenant    had    intrenched    himself.8 

One  cotenanl    may  he   guilty  of    the    offence   as 
againsl  another  who  is  in  peaceable  possession  and 

resists:'1  and  so  may  a  wife  as  against  her  husband.6 
£  17<».  Personal  Property.  Forcible  Trespass.  —  These 
rules  and  principles  are  s1  rictly  applicable  only  to  the 
forcible  entry  and  detention  of  real  property;  ami  it 
has  been  said  that  the  forcible  detainer  of  personal 
property  is  not  indictable.0  Bui  the  s<  izure  of  per- 
sonal property  under  like  circumstances,  and  with 
similar  demonstrations,  maybe  indicted  as  a  forcible 
trespass.7  And  there  seems  to  be  no  reason  why  its 
forcible  detention  may  not  be  also  indictable  by  an 
analogous  change  in  the  description  of  the  offence. 
It  is  not  less  a  public  injury.  It  has  been  Suggested 
that    the    offence    ean    only    be    committed    when    the 

i  People  >\  Field,  52  Barb  (X.  Y.)  198. 

-  State  y.Curtis,4  Dei   &  I'.;it  (X.  C.)222;  Com. ».  Keeper,  &c, 
1  Aslim.  (Pa.)  i  n> 

»  State  <-.  Pridgen,  8  In-'!.  (X.  C.)  84. 

4  Regina  v.  Marrow,  Cas  temp   Hardw.  174. 

•  R<  x  v.  Smyth,  l  M  &  R.  155. 
B  State  v.  Marsh,  64  X.  ('.  378. 

•  State  v.   Ray,  10  Ired.  (N.  C)  39  ;    State  v.  WidenhouHC,  71    X 
C  279. 


EAVESDROPPING.  —  LIBEL  AND   SLANDER.       147 

party  trespassed  upon  is  present ; 1  but  upon  principle 
as  well  as  upon  authority  the  reverse  seems  to  be  the 
better  law.2 

EAVESDROPPING. 

§  171.  Eavesdropping  is  a  kind  of  nuisance  which 
was  punishable  at  common  law,  and  was  denned  to 
be  a  listening  under  the  eaves  or  windows  of  a  house 
for  the  purpose  of  hearing  what  may  be  said,  and 
thereupon  to  form  slanderous  and  mischievous  tales, 
to  the  common  nuisance.3  The  offence  is  no  doubt 
one  at  common  law  in  this  country.  It  has,  indeed, 
been  expressly  so  held;4  and  it  would  seem  that 
any  clandestine  listening  to  what  may  be  said  in  a 
meeting  of  the  grand  jury,  for  instance,  required  by 
law  to  be  secret,  or  perhaps  any  meeting  which  may 
lawfully  be  held  in  secret,  with  an  intent  to  violate 
that  secrecy,  to  the  public  injury  or  common  nui- 
sance,6 would  constitute  the  offence. 

LIBEL    AND    SLANDER. 

§  172.  Definition.  — A  general  and  comprehensive 
definition  of  libel  is  that,of  Lord  Camden,  cited  by 
Hamilton  in  the  argument  in  the  case  of  The  People 
v.  Croswell,6  which  has  been  repeatedly  approved  by 
the  courts  of  New  York,  and  is  as  follows :  "  A  cen- 
sorious or  ridiculing  writing,  picture,  or  sign,  made 

'  State  v.  McAdden,  71  N.  C.  207. 

2  Ante,  §  168;  State  v.  Thompson,  2  Overton  (Tenn.)  96. 

3  1  Hawk  P.  C,  Table  of  Matters  to  Vol.  I.,  Eavesdropper. 

4  State  v.  Williams,  2  Overtoil  (Term.)  108. 

8  State  v.  Pennington,  3  Head  (Tenn.)  299  ;  Com.  v.  Lovett,  6  Pa. 
L.  J.  Rep.  226. 

6  3  Johns.  Cas.  354. 


148  CRIMINAL  LAW. 

with  a  mischievous  or  malicious  intent,  toward  gov- 
ernment, magistrates,  or  individuals. " ] 

Within  the  scope  of  this  definition,  printed  and 
published  blasphemy  is  also  indictable  as  a  libel,2 
and  so  is  printed  obscenity  or  other  immoral  matter, 
—  both  on  the  ground  thai  they  tend  to  deprave  or 
corrupt  the  public  morals.3  So  is  a  publication 
against  the  government,  tending  to  degrade 
vilify  it,  and  to  promote  discontent  and  insurrec- 
tion;4 or  calumniating  a  court  of  justice,  tending  to 
weaken  the  administration  of  justice.5  So  libels 
upon  distinguished  official  foreign  personages  have 
repeatedly  been  held  in  England  punishable  at  the 
common  law,  as  tending  to  disturb  friendly  inter- 
national relations.6  If  remains  to  be  seen  whether 
the  State  courts  (the  United  States  courts  having 
no  jurisdiction)  will  in  this  country  follow  such  h 
precedent. 

Bui  the  more  common  and  restricted  definition  of 
libel  at  common  law,  as  against  individuals,  is.  the 
malicious  publication  of  any  writing,  sign,  picture, 
effigy,  or  other  representation  tending  to  d<  lame  the 
memory  of  one  who  is  dead,  or  the  reputation  of  one 
who  is  living,  and  to  expose  him  to  ridicule,  hatred. 
or  contempt.  It  is  punishable  as  a  misdemeanor,  <>n 
the  ground  that   such  a  publication  has  a  tendency 

i  Cooper u  Greeley,]  Denio(N.Y.)  347. 

•-'  Cora.  v.  Kneeland,  20  Pick  (Mass)  211;  People  v.  Rnggles,  8 
Johns   (N.  V  )  290;  post,  §  194. 

Com.  '■.    Holmes,  17    Mass    :w>;    Com.  '•.  Shunless,  2  S.  &  R. 
(Pa.)  91. 

1  Respublica  v   Dennie,  4  Yeates  (Pa.)  267. 

5  Rex  v.  Watson.  2  '1'    R    19  I 

»  Rex  v.  D'Eon,  l  W.  111.  510;  Peltier's  Case,  28  Howell  St.  Tr.  529. 


LIBEL   AND   SLANDER.  149 

to  disturb  the  public  peace.1  The  libel  is  equally 
criminal  if  directed  against  a  family,  though  it  is  not 
against  any  individual  member  of  it.2 

Words  that  would  not  be  actionable  as  slanderous 
may  nevertheless,  if  written  and  published,  be  in- 
dictable as  libellous.  Written  slander  is  necessarily 
premeditated,  and  shows  design.  It  is  more  perma- 
nent in  its  effect,  and  calculated  to  do  much  greater 
injury,  and  "contains  more  malice."3  Thus,  it  is 
libellous  to  write  and  publish  of  a  juror  that  he  has 
misbehaved,  as  such,  by  staking  the  verdict  upon  a 
chance ; 4  or  of  a  stage-driver,  that  he  has  been 
guilty  of  gross  misconduct  and  insult  towards  his 
passengers ; 5  or  that  a  bishop  has  attempted  to  con- 
vert others  to  his  religious  views  by  bribes;6  or  that 
a  man  is  a  "  rascal  " ; '  or  that  "  he  is  thought  no 
more  of  than  a  horse-thief  "  ; 8  or  to  charge  a  lawyer 
with  divulging  the  secrets  of  his  client;9  or  to  say  of 
a  member  of  a  convention  to  frame  a  constitution, 
that  he  contended  in  the  convention  that  government 
had  no  more  right  to  provide  for  worship  of  the 
Supreme  Being  than  of  the  Devil;10  or  to  print  of  a 

1  1  Hawk.  P.  C,  8th  ed.,  542,  §  3  ;  People  v.  Croswell,  3  Johns.  Cas. 
(N.Y.)  337  ;  Com.  v.  Clap,  4  Mass.  163  ;  Giles  v.  State,  6  Ga.  276 ;  State 
v.  Henderson,  1  Rich.  (S.  C.)  179;  Cooper  v.  Greeley,  1  Denio,  347; 
State  v.  Avery,  7  Conn.  266. 

2  State  v.  Brady,  44  Kan.  435. 

3  King  v.  Lake,  Hardr.  470. 

4  Com  v.  Wright,  1  Cush.  (Mass  )  46. 

5  Clement  v.  Chivis,  9  B.  &  C.  172. 

6  Archbishop  of  Tuam  v.  Robeson,  5  Bing.  17. 

7  Williams  v.  Karnes,  4  Humph  (Tenn.)  9. 

8  Nelson  v.  Musgrave,  10  Mo.  648. 

9  R'ggs  v-  Denniston,  3  Johns.  Cas.  (N.  Y.)  198. 
10  Stow  v.  Converse,  3  Conn.  325. 


150  CRIMINAL    LAW. 

man  that  he  did  not  dare  to  bring  an  action  in  a  cer- 
tain county  "because  he  was  known  there."1  And 
it  has  oven  been  held  that  it  is  libellous  to  char.:'  a 
man  with  a  gross  wanl  of  feeling  or  discretion.2  It 
is  a  criminal  libel  to  write  an  indecent  proposal  to  a 
woman.3  If  a  portrait-painter  paints  the  cars  of  an 
ass  tu  a  likeness  he  has  taken,  and  exposes  it  ti>  the 
public,  this  is  a  libel.4  So  is  it  to  say  of  an  historian 
thai  he  disregards  justice  and  propriety,  and  is  in- 
sensible to  his  obligations  as  an  historian.6  So  [1  is 
libellous  to  publish  a  correct  account  of  judicial  pro- 
ceedings, if  accompanied  with  comments  and  insin- 
uations tending  to  asperse  a  man's  character;6  or 
for  ;m  attorney  to  introduce  such  matter  into  his 
pleadings.7  So  to  say  of  a  candidate  for  office  that 
he  would  betray  his  trust  from  motives  of  political 
aggrandizement,  or  to  accomplish  some  sinister  or 
dishonest  purpose,  or  to  gratify  his  private  malice,  is 
a  libel;  hut  it  is  not  a  libel  to  publish  the  truth  con- 
cerning his  character  and  qualifications  for  the  office 
he  aspires  to.  with  a  view  to  inform  the  electors.8 

The  form  of  expression  in  charging  is  immaterial, 
whether  interrogative  or  t\\vrr\^  or  by  innuendo,  or 
ironical,  or  allegorical,  or  by  caricature,  or  by  any 

i  Steele  v.  Southwick,  '.>  Johns.  (N.  V.)  21  I 

2  Weaver  o.  Lloyd,  i  V>-  &  C.  678.  See  also  Barthelemy  v.  People, 
2  Hill  (N.  V.)  248 

»  Regina  v.  Adams,  22  Q.  R   IX  66. 
«  Mezzara's  Case,  2  City  Hall  lice  113. 
I  ooper  v.  Stone,  24  Wend   (  X    Y.)  t"i 

6  Thomas  v.  Crosw<  11.  7  Johns.  (X.  Y.)  264. 

7  Com.  '■.  Culver,  2  Pa  Law  Jour.  359. 

era  v.  Dubois,  17  Wend.  (X.  V.)  63;  Com.  <•.  dap.  i  Mass. 
163;  Stater.  Burnham,  9  X.  H.  34;  Com.  v.  Odell,  8  Pitts.  (Pa.)  449; 
Wilson  .-.  Noonan,  23  Wis.  105. 


LIBEL   AND   SLANDER.  151 

other  device  whatever.  The  question  always  is, 
what  is  the  meaning  and  intent  of  the  author,  and 
how  will  it  be  understood  by  people  generally.1 

§  173.  Malicious.  —  To  constitute  a  malicious  pub- 
lication it  is  not  necessary  that  the  party  publishing 
be  actuated  by  a  feeling  of  personal  hatred  or  ill-will 
towards  the  person  defamed,  or  even  that  it  be  done 
in  the  pursuit  of  any  general  evil  purpose  or  design, 
as  in  the  case  of  malicious  mischief.2  It  is  sufficient 
if  the  act  be  done  wilfully,  unlawfully,  and  in  viola- 
tion of  the  just  rights  of  another,  according  to  what, 
as  we  have  seen,3  is  the  general  definition  of  legal 
malice.  And  malice  is  presumed  as  matter  of  law 
by  the  proof  of  publication.4  Under  modern  statutes, 
and,  in  some  cases,  constitutional  provisions,  how- 
ever, the  whole  question  of  law  and  fact,  i.  e.  whether 
the  matter  published  was  illegal  and  libellous,  and 
whether  it  was  malicious  or  not,  as  well  as  whether 
it  was  written  or  published  by  the  defendant,  is  left 
to  the  jury,  they  having  in  such  cases  greater  rights 
than  in  other  criminal  prosecutions.5 

It  is  not  essential  that  the  charge  should  be  false 
or  scandalous:  it  is  enough  if  it  be  malicious.  In- 
deed, the  old  maxim  of  the  common  law  was,  "  The 
greater  the  truth,  the  greater  the  libel, "  on  the  ground 

1  Rex  v.  Lambert,  2  Camp.  398 ;  State  v.  Chace,  Walk.  (Miss.)  384  ; 
Gathercole's  Case,  2  Lewin,  237. 

2  See  post,  §  322. 

3  Ante,  §  33. 

4  Com.  v.  Snelling,  15  Pick.  (Mass.)  321  ;  Smith  v.  State,  32  Texas, 
594  ;  Layton  v.  Harris, 3  Harr.  (Del.)  406 ;  Root  v.  King,  7  Cow.  (N.  Y. ) 
613;  Com.  v.  Sanderson,  3  Pa.  Law  Jour.  269;  Rex  v.  Harvey,  2  B. 
&  C.  257. 

5  State  v.  Goold,  62  Me.  509  ;  2  Greenl.  Ev.,  §  411  ;  State  v.  Lehre, 
2  Brev.  (S.  C)  446. 


152  CRIMINAL    LAW. 

thai  thereby  the  danger  of  disturbance  of  the  public 
peace  was  greater.  The  truth,  therefore,  is  no  justi- 
fication by  the  common  law.  Bui  this  rule  has  in 
some  cases,  in  this  country,  been  so  tar  modified  as 
to  permit  the  defendant  to  show,  if  he  can,  thai  the 
licatiou  under  the  circumstances  was  justifiable 
from  good  motives,  and  then  show  its  truth,  in 
order  to  uegative  the  malice  and  intent  to  delaine.1 
And  statutes  in  most  if  nol  all  of  the  States  now 
admit  the  truth  in  defence  if  the  matter  he  published 
lor  a  justifiable  end  and  with  good  m  >tives,  and  give 
the  jury  the  righl  to  determine  these  facts,  as  well 
as  whether  the  publication  he  ;(  Libel  or  not. 

^  174.  Publication.  —  The  placing  a  libel  where  it 
may  he  seen  and  understood  by  one  or  more  persons 
other  than  the  maker  is  a  publication,  for  the  pur- 
poses of  the  criminal  law,  without  reference  to  the 
question  whether  in  tact  it  is  seen  or  not.-  or  if  seen 
whether  or  not  it  is  understood.3  11  has  been  held 
that  to  send  a  libellous  letter  to  the  person  libelled 
is  a  siiliicieiit  publication.4  But  il  may  he  doubted, 
in  the  absence  of  statutory  provision  to  that  effect, 
if  the  mere  delivery  of  a  letter  containing  libellous 
matter  to  the  libelled  party  is  a  technical  publication, 
though  doubtless  the  sending  of  such  a  letter  is  an 
indictable   offence,    as   tending  to  a   breach   of   the 

1  Com.  r.  Clap,  •!   Mass.  163;  Com    ■■.  Blanding,  •'!  Pick.  (Mas? 
304;  Barthelemy  t>.  People, 2  Hill  (N.Y.)  248.     Seeal*  Lehre, 

^  Brev.  (S.  C.)  446;  Com.  v,  Morris,  I  Va.  Caa   176;   Codd's  C 
City  Hall  Rec.  171. 

i  v.  State,  6  Ga    276;   Rex  <•    Bnrdett,  4  B.  &  Aid.  8 
Whitfiel  1  v.  S.  E.  Rj    Co.,  E  .  B  &  E.  115. 

•'i  Baase  v.  State,  20  Ail.  751  (N.J.). 

4  State  v.  Av<  ry,  7  Conn.  266. 


LIBEL   AND   SLANDER  153 

peace.1  But  there  can  be  no  doubt  that  a  sealed 
letter  addressed  and  delivered  to  the  wife,  contain- 
ing aspersions  upon  her  husband's  character,  is  a 
publication.'2 

§  175.  Privileged  Communications.  —  Certain  publi- 
cations are  privileged,  that  is  to  say,  are  prima  facie 
permissible  and  lawful.  If  the  occasion  and  cir- 
cumstances under  which  they  are  made  rebut  the  in- 
ference of  malice  drawn  from  its  libellous  character, 
the  publications  are  privileged  and  lawful,  unless  the 
complainant  shows  that  the  defendant  was  actuated 
by  improper  motives.  But  no  one  can  intentionally 
injure  under  cover  of  a  privileged  communication; 
and  if  he  avail  himself  of  this  course  he  is  charge- 
able, although  the  matter  published  be  true  and 
privileged.3  Thus,  a  fair  and  candid  criticism,  though 
severe,  of  a  literary  work,  exposing  its  demerits,  is 
privileged;  but  if  the  criticism  is  made  the  vehicle 
of  personal  calumny  against  the  author  aside  from 
the  legitimate  purpose  of  criticism,  it  becomes  libel- 
lous.4 A  communication  made  in  good  faith  by  a 
person  in  the  discharge  of  some  private  duty,  legal 
or  moral,  or  in  the  conduct  of  his  own  affairs,  and 
in  matters  wherein  he  is  interested,  is  privileged.5 

1  Hodges  v.  State,  5  Humph.  (Tenn.)  112;  Mcintosh  v.  Matherly, 
9  B.  Mon.  (Ky.)  119  ;  Fonville  v.  M'Nease,  Dudley  (S.  C.)  303  ;  Lyle 
?•  Clasnn,  1  Caines  (N.Y.)  581  ;  Sheffill  v.  Van  Deusen,  13  Gray  (Mass.) 
304. 

2  Schenck  v.  Schenck,  1  Spencer  (N.  J.)  208  ;  Wenman  v.  Ash,  13 
C.  B.  836. 

8  Wright  v.  Woodgate,  2  C,  M.  &  R.  573  ;  Com.  v.  Blanding,  3  Pick. 
(Mass.)  304. 

4  Carr  v.  Hood,  1  Camp.  355. 

5  Bodwell  v.  Osgood,  3  Pick.  (Mass.)  379;  Toogood  v.  Spyring, 
4  Tyrw.  582. 


154  CRIMINAL  LAW. 

Therefore,  one  may  write  to  a  relation  warning  her 
not  to  many  a  certain  person,  for  special  reasons 
affecting  the  character  of  that  person;1  or  complain 
to  a  superior  againsl  an  interior  officer  in  order  to 
obtain  redress;-  or  give  the  character  of  a  servant 
in  answer  to  a  proper  inquiry;3  or  report  a  servant's 
conduct  to  his  master;4  or  tell  the  truth  to  defend 
his  own  character  and  interests;6  or  to  enforce  the 
rides  of  a  society;6  or  to  aid  in  the  exposure  or  de- 
tection of  crime,  or  protect  the  public  or  a  friend 
from  being  swindled  or  otherwise  injured."  These 
communications,  and  the  like,  though  they  may  he  to 
some  extent  hils  •.  are  all  privileged  if  nude  withoul 
malice,  and  for  justifiable  ends.  Though  a  man  is 
protected  in  making  a  libellous  speech  in  a  legisla- 
tive assembly,  if  he  publish  it  he  is  guilty  of  lii 
Ami  fair  reports  of  judicial  and  other  proceedings, 
as  matter  of  news,  will  he  privileged,  while  if  unfair, 
or  interlarded  with  malicious  comment,  they  will  he 
punishable  as  libellous.9  If,  however,  the  matter 
published  is  in  itself  indecent,  blasphemous,  or  con- 
trary to  good  morals,  it  his  been  held,  upon  very 
careful   consideration,  to   he    indictable.10 

1  Todd  v.  Hawkins,  8  ('.  &  P.  88. 

2  Fairman  v   [ves,  5  I!.  &  Aid.  642. 

3  Child  v.  Affleck,  9  B.  &  C.  103. 

*  Cockayne  v.  Hodgkisson,  5  C  &  P.  543. 

6  Coward  v.  Wellington,  7  C.  &  P.  531. 

'■  Remington  v.  Congdon,  2  Pick.  (Mass.)  310;  Streety  v.  Wood,  i~> 
Barb.  (X.  V.)  105. 

7  Com.  r.  Blanding,  a  Pick.  fMass.)304     Lay  v.  Lawaon, 4  A.4  E. 
795. 

v.  Creevey,  I  M.  &  S.  L'Ta 
9  I  1  irk  v  Binney,  ii  Pick.  |  Mass.)  113;  Thomas  i>.  Croswell, 7  Johns. 
264;  Lewis  v.  Walter,4  I'.  ><  Aid.  605;  ('urn  v.  Walter,  1  B.&F.525. 
w  Rex  v.  Carlile,  3  B.  &  Aid.  161. 


ENGROSSING.  —  FORESTALLING.  —  REGR  ATING.    1 55 

§  176.  Slander.  —  No  instance  has  been  found  of  an 
indictment  for  mere  verbal  slander  against  an  indi- 
vidual in  this  country,  nor  is  it  indictable  in  Eng- 
land, unless  the  individual  sustained  such  a  relation 
to  the  public,  or  the  slander  was  of  such  a  character, 
as  to  involve  something  more  than  a  private  injury, 
as  where  one  was  held  indictable  for  calling  a  grand 
jury  as  a  body  a  set  of  perjured  rogues.1 

ENGROSSING.  —  FORESTALLING.  —  REGRATING. 

§  177.  These  were  severally  offences  at  the  com- 
mon law,  and  describe  different  methods  of  specula- 
tion and  artificial  enhancement  or  depression  of  the 
prices  of  merchandise,  by  resort  to  false  news,  ex- 
traordinary combinations,  and  other  indirect  means 
outside  of  the  regular  action  of  the  laws  of  trade. 
They  were  based  upon  early  English  statutes,  and 
notably  5  and  6  Edward  VI.  c.  14,  which  are  cited  by 
Hawkins,2  and  of  which  a  very  good  summary  may 
be  found  in  Bishop.3  These  statutes  are  now  re- 
pealed in  England,  and  the  offences  abolished.  They 
were  undoubtedly  a  part  of  the  common  law  brought 
to  this  country,  but  seem,  nevertheless,  not  to  have 
been  enforced,  —  perhaps  on  account  of  the  greater 
freedom  of  trade,  and  the  infrequency  of  the  occur- 
rence of  the  evils  connected  with  them  in  a  new 
country.  There  is  no  reason  in  principle,  however, 
why  they  should  not  be  applicable  to  many  of  the 
practices  of  the  stock  and  other  markets  of  the  pres- 
ent day.4 

1  Rex  v.  Spiller,  2  Show.  207.  See  also  2  Bish.  Cr.  Law,  7th  ed., 
§  945  et  seq. 

2  1  Hawk.  P  C  ,  8th  ed.  646.  3  1  Cr.  Law,  7th  ed.,  §  518  et  seq. 
4  City  of  Louisville  v.  Roupe,  6  B.  Mon.  (Ky.)  591 ,  7  Dane,  Abr. 


l^Q  CRIMINAL   LAW 

NUISANCE. 

8  178.  A  Nuisance  is  anything  thai  works  hurt,  in- 
convenience, or  damage.  If  to  the  public,  as  the 
obstruction  of  a  highway  or  the  pollution  of  the  at- 
mosphere, it  is  a  common  nuisance,  and  punishable 
by  indictment  at  common  law.  It'  the  hurl  is  only 
to  a  private  pers  >n  or  interest,  the  remedy  is  by  civil 
proceedings.1  And  that  is  hurtful  which  substan- 
tially interferes  with  the  free  exercise  of  a  public 
right,  which  shucks  or  corrupts  the  public  morals, 
or  injures  the  public  health.  And  the  hurl  maybe 
wrought  as  well  by  acts  of  omission  as  by  aids  of 
commission;  as  by  failing  to  repair  a  road,  or  to 
entertain  a  stranger  at  an  inn.  both  being  regarded 
as  disorderly  acts.2 

§  179.  Obstruction  and  Pollution.  —  Certain  acts  are 
said  t  i  he  nuisances  per  se,  because  they  are  in  vio- 
lation of  the  public  right.  Thus,  an  obstruction  in 
a  street  is  a  nuisance,  because  it  may  interfere  with 
public  travel,  although  it  does  not  affirmatively  ap- 
pear thai  it  certainly  has  interfered  with  it.  or  even 
if  it  appears  thai  there  has  been  no  travel  to  ob- 
struct since  the  obstruction  was  erected.8  So  i  f  the 
ruction  of  navigable  waters,  although  the  incon- 
venience may  he  inappreciable.4     So  the  doing  any 

39.  F<>r  t lie  learning  on  this  Bubject,  in  addition  to  the  authorities 
already  cited,  see  Rex  v.  Waddington,  1  East,  143;  Rex  v  Webb.  14 
t02;  Pratt  v.  Hutchinson,  15  East,  511;  2  Chitty  Cr.  Law,  527 ; 
Rex  v.  Rusby,  Peake,  Add.  Cas.  189. 

i  3  Bl.  C .216;   i  Bl.Com.16i  Schlottman,  52  Mo.  164. 

a  i  Bl.  Com.  167;  State  p.  Madison,  63  Me  546;  State  v.  Morris 
Canal  Co.,  2  Zabr.  (N.  J  I  537  ;   Hill  v.  Sec  .  i  |  443 

::  Knox  v.  Nov  York  City,  55  Barb.  (N.  Y.)  404. 

i  People  v.  Vanderbilt,  28  V  V.  396;  W Iman  v.  Kilbourn  Mfg. 

i    \i,i,  (TJ    S.)  158  ;  State  v.  Mi  mi,  35  Conn.  31  i. 


NUISANCE.  157 

act  in  the  street  or  in  a  building  adjoining  the  street, 
as  the  exhibition  of  pictures  in  a  window,1  or  other 
exhibition  near  the  street,2  or  the  holding  an  auc- 
tion sale  on  the  street,3  or  erecting  houses  on  a  public 
square,4  —  or  the  delivering  out  of  merchandise  or 
other  material,  as  of  brewer's  grain  from  a  brewery, 
in  such  a  manner  as  to  cause  the  street  to  be  con- 
stantly obstructed  by  men  or  vehicles, —  will  amount 
to  a  nuisance. 5  A  mere  transitory  obstruction,  how- 
ever, resulting  from  the  ordinary  and  proper  use  of  a 
highway,  as  in  the  unloading  of  goods  from  a  wagon, 
or  the  dumping  coal  into  a  street  to  be  removed  to 
the  house,  if  the  obstruction  be  not  permitted  to  re- 
main more  than  a  reasonable  time,  does  not  amount 
to  a  nuisance.6  The  pollution  of  a  stream  of  water, 
by  discharging  into  it  offensive  and  unwholesome 
matter,  if  the  water  be  used  by  the  public,  is  also 
indictable  as  a  nuisance,"  and  all  who  contribute  to 
such  pollution  are  guilty.8  So  is  the  damming  up  of 
a  stream,  so  as  to  make  the  water  stagnant  and  pes- 
tiferous.9 In  New  Hampshire,  the  prevention  of  the 
passage  of  fish  by  a  dam  constructed  across  a  non- 
navigable  stream  is  indictable  at  common  law.10 

1  Rex  v.  Carlile,  6  C.  &  P.  636. 

2  Walker  v.  Brewster,  L.  R.  5  Eq.  25. 

8  Com.  v.  Milliman,  13  S.  &  R.  (Pa.)  403. 

4  Com.  v.  Rush,  14  Pa.  186. 

5  People  v.  Cunningham,   1   Denio  (N.  Y.)   524;    Rex  v.   Russell, 
6  East,  427. 

6  Rex  v.  Carlile,  6  C.  &  P.  636  ;   People  v.  Cunningham,  1  Denio 
(N.  Y.)  524. 

7  State  v.  Taylor,  29  Ind.  517  ;  State  v.  Buckman,  8  N.  H.  203. 

8  State  v.  Smith,  48  N.  W.  727  (Iowa). 

9  State  v.  Rankin,  3  S.  C.  438. 

10  State  v.  Franklin  Falls  Co.,  49  N.  H.  240. 


l^S  CRIMINAL   LAW, 

§  ISO.  Obnoxious  Business. —  Other  acts  may  or  may 
not  be  nuisances,  accordi  tie  attendant  circum- 

stances. A  Lawful  business  conducted  in  a  proper 
manner,  in  a  proper  place,  and  at  a  proper  time, 
without  inconvenience  to  the  public,  maybe  perfectly 
innocent;  while  the  same  business,  if  carried  on  in 
an  improper  manner,  or  al  an  improper  place,  or  al 
an  improper  time,  to  the  annoyance  or  injury  of  the 
public,  will  become  abatable  as  a  nuisance.  The 
manufacturing  of  gunpowder,  refining  oils,  tanning 
hides,  and  making  bricks  are  examples  of  this  class.1 
So  the  setting  of  spring-guns.2  No  act  authorized 
by  the  legislature,  however,  can  be  punished  as  a 
nuisance,  even  though  at  common  law  a  nuisance  /<  r 
se.s  In  th"  case  of  offensive  od  >rs,  they  become  a 
nuisance  if  they  make  the  enjoymenl  of  a  right  •  as 
of  a  passage  along  the  highway,  or  of  Life  elsewhere 
—  uncomfortable,  though  the  odors  may  not  be  un- 
wholesome.4 So  a  coal-shed  in  a  thickly  settled 
Locality,  which  disturbs  the  neighborhood  by  reason 
of  noise  and  dust,  is  a  nuisance.6 

§  181.  Immoral  Nuisances. — -Any  business  obnoxious 
to  the  public  morals  is  a  criminal  nuisance.  Such 
is  the  business  of  carrying  on  "bookmaking"  in  a 

i  Attorney  General  r.  Steward,  20  N.  J  Eq  415;  Wier's  Appeal,  74 
Pa  St.  230;  State  v.  Hart,  34  Me.  36,  Powder  Co.  v.  Tearaey,  131  111. 

-  Stair  v   Moore,  31  Conn   479. 

8  Cora.  v.  Boston,  97  Mass.  555  Danville, &c  R.K  o.  Com, 73  Pa 
29;  People  v  New  York  Gaa  Lighl  Co.,  64  Barb.  (N.  Y 

;  Rex  v.  White,  2  C.  &  P.  I85,n  ;  State  «.  Payson,  37  Me  361 ;  State 
v.  Purse,  i  McCord  (S  C.)  472;  Seacord  v  People,  121  111.  623 ;  Com. 
r.  Perry,  139  Mass.  l  its. 

s  Wvlic  r.  Elwood,  134  111.  281. 


NUISANCE.  159 

booth  on  a  race-course,1  or  the  singing  of  ribald 
songs  on  the  public  streets.2  So  profanity,  or  pro- 
fane cursing  and  swearing,  is  a  special  form  of 
nuisance,  indictable  at  common  law.3  But  it  has 
been  held  that  a  single  instance  of  swearing  will  not 
constitute  the  offence;  there  must  be  such  repetition 
as  to  make  the  offence  a  common  nuisance.4  Eaves- 
droppers, common  scolds,  railers  and  brawlers,  com- 
mon drunkards,  common  barrators,  and  the  like, 
persons  guilty  of  open  obscenity  of  conduct  or  lan- 
guage, of  blasphemy,  of  profanity,  or  who  keep  dis- 
orderly houses,  as  for  gaming  or  prostitution,  or 
make  disorderly  and  immoral  exhibitions,  or  pro- 
mote lotteries,  or  carry  about  persons  affected  with 
contagious  disease,  or  make  unseemly  noises  at  im- 
proper times  and  places,  may  all  be  included  under 
the  general  category  of  common  nuisances,  if  the 
several  acts  work  injury  to  the'  public,  punishable 
at  common  law  unless  otherwise  provided  for  by 
statute. 5 

§182.  Prescription.  Public  Benefit.  —  The  lapse  of 
time  docs  not  give  the  right  to  maintain  a  nuisance. 
No  one  can  prescribe  against  the  State,  against 
which  the  statute  of  limitations  docs  not  run,  and 
which  is  not  chargeable  with  laches.  Nor  is  it  any 
excuse  that  the  public  benefit  is  equal  to  the  public 


1  McClean  v.  State,  49  N.  J.  L.  471. 

2  State  v.  Toole,  106  N.  C.  736. 

3  State  v.  Powell,  70  N.  C.  67. 

4  State  v.  Jones,  9  Ired.   (N.  C.)  38;    State  v.  Graham,  3  Sneed 
(Tenn.)  134. 

5  4   Bl.  Com.  167  et  seq.,  and  notes,  Sharswood's  ed. ;  Barker  v. 
Com.,  19  Pa.  412  ;  Rex  v.  Moore,  3  B.  &  Ad.  184. 


1(30  CRIMINAL    LAW. 

inconvenience;1  nor  thai  similar  nuisances  have 
been  tolerated.2 

It  has  indeed  been  said  by  high  authority,  that 
where  a  useful  trade  or  business  lias  been  estab- 
lished, away  from  population,  it  m;i\  be  continued, 
aotwithstanding  the  approach  of  population.3  So, 
too,  it  has  been  held  thai  a  business  established  in 
a  neighborhood  where  offensive  trades  already  exist, 
which,  though  individually  offensive,  does  not  ma- 
terially add  to  the  already  existing  nuisance,  may 
be  permitted.*  And  in  one  case,  al  least,  in  this 
country  the  doctrine  of  the  first  case  seems  to  have 
been  accepted.5  Bui  it  is  questionable  whether  this 
is  now  the  law  in  England.6  And  the  very  decided 
weight  of  authority  in  this  country  is  to  the  contrary 
on  both  points.7 

P.ut  an  important  qualification  is  to  be  noted.  It 
is  true  that  a  business  which  is  a  nuisance  cannot  be 
defended  by  reason  of  lapse  of  time,  or  of  the  char- 
acter of  the  surroundings;  but  in  deciding  whether 
in  fact  the  business  constitutes  a  nuisance,  these 
facts  are  to  be  considered,  along  with  the  other  cir- 

1  Stair  v.  Raster,  35  Iowa,  221  ;  Hart  v,  Albany,  9  Wend.  iX.  Y.) 
571  :  Respublica  v.  Caldwell,  1  Dall.  (Pa.)  150. 

-  People  v.  Mallory,  4  T.  &  (\  (X.  v.)  567;  ('ma.  r.  Deerfield, 
6  Allen  (Mass.)  449  ;  (',,,11.  ,..  lVrrv.  139  Mass.  108. 

a  Abbott,  C.  J.,  Hex  v.  Cross,  2  ('.  ,<:  1'.  483. 

*  Rex  v.  Watts,  M.  &  M.  281. 

6  Ellis  '•.  State,  7  Blackf.  (Ind.)  534. 
c  Regina  >•.  Fairie,  8  E.  X-  15.  486. 

7  Taylor  v.  People,  *'■  Parker  C.  C.  347;  Com.  v.  Upton,  6  Oray 
(Mass.)  473  ;  People  '-.  Cunningham,  1  Demo  (N.Y.)  524;  Com.  v.  Van 

.  1    Bright.  (Pa.)  69;    Ashbrook  v.  Com.,  1    Bash   (Ky.)   139 ; 
D01  -    State,  I  Wis  387;  People  v   Detroil   White  Lead  Works, 

-j  Mich.  471. 


ATTEMPT.  161 

cumstances  of  the  case.  What  would  be  a  nuisance 
in  a  country  village,  or  in  the  residential  quarter  of 
a  city,  might  not  be  a  nuisance  if  established  in  a 
locality  devoted  to  manufacturing.  Therefore  a  re- 
finery or  a  slaughter-house  is  not  a  nuisance,  if 
established  in  a  locality  which  is  devoted  to  such 
business,   and  draws  its  prosperity  from  it.1 

ATTEMPT. 

§  183.  Attempt,  Preparation,  and  Intent.  —  An  attempt 
to  commit  a  crime  is  distinguishable  from  prepara- 
tion to  commit  it,  and  also  from  the  intent  to  com- 
mit. The  purchase  of  matches,  for  instance,  with 
the  intent  to  set  fire  to  a  house  at  some  convenient 
opportunity,  is  not  an  attempt  to  set  the  fire.  It  is 
mere  preparation,  and,  though  the  intent  exists, 
there  is  no  step  taken  in  the  perpetration  of  any 
crime  to  which  the  intent  can  attach.  The  law  does 
not  punish  the  mere  entertainment  of  a  criminal 
intent.  To  bring  the  law  into  action  it  is  necesary 
that  some  act  should  be  done  in  pursuance  of  the  in- 
tent, immediately  and  directly  tending  to  the  com- 
mission of  the  crime, —  an  act  which,  should  the  crime 
be  perpetrated,  would  constitute  part  and  parcel  of 
the  transaction,  but  which  does  not  reach  to  the  ac- 
complishment of  the  original  intent,  because  it  is 
prevented,  or  voluntarily  abandoned.2  What  does 
immediately  and  directly  so  tend  is  to  be  determined 
by  the  circumstances  of  each  particular  case ;  and,  as 
might  be  expected,  courts  which  agree  upon  the  prin- 

1  Com.  r.  Miller,  1.39  Pa.  77  ;  Ballentine  v.  Webb,  84  Mich.  38. 

2  Steph.  Diff.  Crim.  Law,  art.  49  ;  Lewis  v.  State,  35  Ala.  380  ;  Field, 
C.  J.,  in  People  v.  Murray,  14  Cal.  159. 

11 


162  CRIMINAL   LAW. 

ciplc  are  not  entirely  consistent  in  its  application. 
The  dividing  line  between  acts   preparatory  to  and 
in  execution  of  a  crime  is  very  shadowy.      U  the  ad 
preparatory  be  unequivocal  and  explicable  only  upon 
the  theory  that  it  was  intended  as  a  step  in  the  com- 
mission of  a  crime,  as  in  the  procuring  dies  for  mak- 
ing counterfeit  coins,  it  seems  to  be  held  to  be  an 
attempt;  although,   if  explicable  as  a  lawful  act,  it 
might  be  otherwise.1     So  taking  a  false  oath  in  order 
to  procure  a  marriage  license  is  an  attempt  to  many 
without  a  license.2     So  the  taking  an  impression  of 
a  key  to  a  storehouse  and  preparing  ;i  false  key,  with 
intent  to  enter   and    steal,  has   Into    held  to   be  an 
attempt  to  steal.3     On  the  other  band,  the  putting 
the  linger  on  the  trigger  of  a  pistol  at  half-cock,  or 
otherwise  not  in  condition  to  be  discharged,  has  been 
held  not  to  constitute  an  attempt  to  shoot.4     Sending 
an  order  Eor  the  purchase  of  liquor  in  San  Francisco, 
to  be  shipped  to  Alaska,  is  not  an  attempt   to  intro- 
duce liquor  into  Alaska.5     And  the  delivery  of  poison 
by  A.  to  15..  in  order  that  the  latter  might  deliver  it 
to  C,  to  be  taken  by  the  latter,  is  not  an  " attempt 
1,,  poison"  by  A."      Nor  is  the  actual  administration 
of  a  substance  supposed   to  be  poisonous,  but   not   so 
i,,  fact. 7     Bui    Regina  y.Williams  was  a  case  under 
a  statute;    and  it  seemed  to  be    agreed    by   all   the 
judges,  that,  while    they  must    confine    statutory   at- 

i  Rex  v.  Puller,  R.&  R.C.C.408;  Regina  •:  Roberts,  7  Cox  C.  C.  39. 
2  Regina  v.  Chapman,  :i  Cox  C.  C.  467. 
a  Griffin  v.  Stat.-.  -2C  Ga.  403. 

i    Rex  V.  Harris,  5  C.  &  P.  159. 

b  United  States  v.  Stephens,  8  Sawy.  C.  Ct.  116. 
e  Regina  v.  Williams,  l  Don.  C.  C.  39. 
»  State  v.  Clarissa,  n  Ala.  57. 


ATTEMPT.  163 

tempts  strictly  to  the  terms  of  the  statute,  a  less 
intimate  connection  of  the  act  done  with  the  crime 
intended  is  requisite  in  common  law  attempts. J 

§  184.  Impossibility  of  Execution.  —  In  England,  it 
was  once  held  that,  to  constitute  an  attempt,  the  act 
committed  must  be  of  such  a  nature  and  under  such 
circumstances  that  the  actor  has  the  power  to  carry 
his  intention  into  execution,  and  that  thrusting  the 
hand  into  the  pocket  of  another  with  intent  to  steal 
a  pocket-book,  or  some  other  article  of  property,  is 
no  attempt,  if  there  be  at  the  time  nothing  in  the 
pocket  to  steal.2  But  this  doctrine  has  been  aban- 
doned even  in  England ; 3  and  the  contrary  is  gener- 
ally, if  not  universally,  held  in  this  country.4  But 
though  the  execution  of  the  intended  act  may  not  in 
fact  be  possible,  the  means  adopted  must  be  in  them- 
selves calculated  to  bring  about  the  result  finally 
desired;  else  the  public  tranquillity  is  not  disturbed, 
and  the  act  done  is  not  criminal.  Thus  there  must 
be  some  real  object  at  which  the  act  is  aimed. 
Striking  at  a  corpse,  or  shooting  at  a  bush  thinking 
it  a  man,  is  for  this  reason  not  an  attempt  to  kill. 
And  where  a  soldier,  seeing  a  body  of  troops  in  the 
distance  and  thinking  them  hostile,  rode  toward 
them  intending  to  desert,  this  was  held  not  an  at- 

1  Regina  v.  Roberts,  7  Cox  C.  C.  39.  See  the  cases  illustrative  very 
fully  collected  and  stated  in  I  B.  &  H.  Lead.  Cr.  Cas.,  note  to  Rex  n. 
"Wheatley,  pp.  6-10  ;  Regina  v.  Cheeseman,  9  Cox  C.  C.  100;  People  v. 
Murray,  14  Cal.  159. 

2  Regina  v.  Collins,  10  Jur.  n.  s.  686. 

3  Regina  v.  Brown,  38  W.  R.  95  ;  s.  c.  24  Q.  B.  D.  357. 

4  Com.  v.  McDonald,  5  Cush.  (Mass.)  365  ;  People  v.  Jones,  46  Mich. 
441  ;  People  r.  Moran,  123  N.  Y.  254  ;  Clark  v.  State,  86  Tenn.  511 ; 
Harvick  v.  State,  49  Ark.  514. 


164  CRIMINAL   LAW. 

tempi  lo  desert  when  the  troops  in  fact  were  friendly, 
not  hostile.1 

For  tlic  same  reason,  the  moans  must  be,  to  the 
apprehension  of  a  reasonable  man,  calculated  to  effect 
the  purpose.  Using  witchcraft  for  the  purpose  of 
killing  an  enemy  is  not  an  attempt  to  kill.  "II  is 
true,  the  sin  and  wickedness  may  be  as  greal  as 
an  attempt  or  conspiracy  by  competent  means;  but 
human  laws  are  made,  not  to  punish  sin,  but  to  pre- 
vent crime  and  mischief."2 

§185.  Solicitation.  —  To  incite,  solicit,  advise,  or 
agree  with  another  to  commit  a  crime  is  in  itself  a 
crime  in  the  nature  of  an  attempt,  although  the  con- 
templated crime  be  not  committed.3  But  it  has 
recently  been  said  that  the  doctrine  of  these  cases, 
if  sound  law,  cannot  be  extended  to  the  solicitation 
to  commit  a  misdemeanor,  a  mere  solicitation  not 
amounting  to  an  attempt.4  It  would  seem,  how- 
ever, that  if  solicitation  is  an  attempt  in  the  case 
of  felony,  it  is  in  that  of  misdemeanor.  It  is  cer- 
tainly something  more  than  intent,  and  the  doc- 
trine of  the  last  case  can  better  be  supported  upon 
the  Failure  of  the  indictment  sufficiently  to  set  forth 
the  mode  of  solicitation,  than  upon  the  point  that 
mere  solicitation  is  not  an  act.  An  offer  to  give  a 
bribe,  and  an  offer  to  accept  a  bribe,  have  beeu 
held  to  be  indictable  offences;6  and  so  have  a  chal- 

1  Respublica  v.  Malin.  1  Dull.  (Pa.)  33. 

-  Pollock,  C  B.,  in  Attorney  Genera]  v.  sill,.,,,.  2  II.  ,<•  C.  431,  525. 
•"•  Regina  v.  Biggins,  '-'  East,  .">  :    State  '•.  Avery,  7  Conn.  266;  3 
i  1.  Ev.  (13th  ed.),  §  2.  and  note;  Steph.  Dig.  Cr.  Law, arts.  )7,  18; 
1  Bish.  cr.  Law,  §  767  :  State  v.  Sales,  ^  Nev.  268. 
4  Smith  v,  Cmii.,  54  Pa.  209. 
•'  United  States  o.  Worrall,  -2  Dall.  384;  Walsh  v.  People,  65  111.  58. 


CONSPIRACY.  165 

lenge  to  fight  a  duel,1  and  inviting  another  to  send  a 
challenge.2 

Although  suicide  is  not  punishable,  yet  it  is  crimi- 
nal,3 and  an  unsuccessful  effort  at  suicide  is  punish- 
able as  an  attempt ; 4  though  in  Massachusetts  the 
phraseology  of  the  statute,  which  makes  attempts  pun- 
ishable by  one  half  the  penalty  provided  for  the  com- 
pleted crime,  has  practically  made  the  offence  of  an 
attempt  to  commit  suicide  dispunishable.5  In  some 
of  the  States,  suicide  is  not  regarded  as  a  crime,  but 
by  statute  it  is  made  a  felony  to  persuade  another  to 
commit  suicide.6 

CONSPIRACY. 

§  186.  We  see  therefore  that  it  is  a  crime  for  one 
person  to  solicit  another  to  commit  a  crime.  It 
is  one  step  in  a  series  of  acts,  which,  if  continued, 
will  result  in  an  overt  act ;  and  although  it  may  be 
ineffectual,  it  is  part  and  parcel  of  what,  if  consum- 
mated, becomes  a  complete  and  effectual  crime.  It 
therefore  partakes  of  its  criminality,  and  belongs 
strictly,  perhaps,  to  that  class  of  crimes  which  is  in- 
cluded under  "attempts."  Mutual  solicitation  by 
two  or  more  persons  is,  of  course,  upon  the  same 
grounds,  equally  criminal ;  and  when  this  mutual 
solicitation  has  proceeded  to  an  agreement,  it  is  re- 
garded by  the  law  as  a  complete  and  accomplished 

1  State  v.  Farrier,  1  Hawks  (N.  C.)  487 ;  Com.  v.  Whitehead,  2  Law 
Reporter,  148. 

2  Rex  v.  Philipps,  6  East,  464. 

3  Com.  v.  Mink,  1 23  Mass.  422. 

4  Regina  v.  Doody,  6  Cox  C.  C.  463. 
6  Com.  v.  Dennis,  105  Mass.  162. 

6  Blackburn  v.  State,  23  Ohio  St.  146. 


IQQ  CRIMINAL  LAW. 

crime,  which  it  denominates  conspiracy,  and  defines 
to  be  "an  agreement  to  do  against  the  rights  of  an- 
other an  unlawful  act,  or  use  unlawful  1 1 1 » - : 1 1 1  ^ .  It 
is  immaterial  that  the  end  sought  is  lawful,  provided 

the  means  by  which  it  is  to  be  sought  are  unlawful. 
Nor  is  it  necessary  that  that  which  is  agreed  to  be 
done  should  be  criminal,  or  in  itself  indictable.  It 
is  sufficient  if  it  be  unlawful.1 

§  187.  In  what  Sense  Unlawful  —  Yet  perhaps  not 
every  unlawful  act  will  support  an  indictment  for 
conspiracy.  Thus,  it  has  been  held  in  England  that 
an  agreement  to  trespass  upon  the  lands  of  another, 
as  to  poach  for  game,  is  no  conspiracy.2  And  this 
case  has  been  followed  in  New  Hampshire.8  So  it 
has  been  held  that  an  agreement  to  sell  an  unsound 
horse  with  a  warranty  of  soundness  is  not  an  indict- 
able conspiracy.4  And  it  has  even  been  held  in 
New  Jersey  that  to  support  an  indictment  for  con- 
spiracy there  must  be  indictable  crime,  either  in  the 
end  proposed  or  the  means  to  be  used.5  But  all 
these  are  cases  upon  which  later  decisions  have 
thrown  great  doubt,  and  neither  perhaps  would  now 
be  followed  except  upon  its  exact  facts.6 

i  Regina  v.  Bunn,  12  Cox  C.  C.  316;  s.  e.  1  Green's  Cr.  Law  Rep. 
52;  Regina  v.  Warbnrton,  Law  Rep.  1  C.  C.  274  ;  Com.  o.  Hunt,  i  Met. 
(Mass.)  in:  State  v.  Mayberry,48  Me.  21s  :  State  v.  Rowley,  12  Conn. 
101  ;  People  o.  Mather,  4  Wend.  (N.  V.)  229  ;  Smith  v.  People,  25  111. 
17  ;  Stan-  v.  Bnrnham,  15  X.  II.  396. 

-  Rex  v.  Turner,  L8  Mast,  228. 

:;  State  r.  Straw,  42  X.  II.  898. 

4  Rex  v.  Pywell,  1  Stark.  402. 

&  state  o.  Rickey, 4  Halst.  293. 

c  Sec  Regina  '•.  Kenrick,  •">  <^.  R.  40  ;  Retina  v.  Rowlands,  5  Cox 
C.  C.  406,  490;  Lambert  v.  People,  9  Cow.  (X.  V.)  578,  in  addition  t<> 
cases  cited  ante,  §  186. 


CONSPIRACY.  167 

It  may  be  that  some  unlawful  acts  or  means  might 
be  held  too  trivial  to  support  a  charge  of  conspiracy ; 
but  what  they  are,  and  how  trivial,  we  have  no 
means  of  determining.1 

However  that  may  be,  it  seems  to  be  settled  that 
all  combinations  to  defeat  or  obstruct  the  course  of 
public  justice,  as  by  the  presentation  of  false  testi- 
mony,2 or  tampering  with  witnesses,3  or  with  jurors,4 
or  with  the  making  up  of  the  panel,  or  preventing 
the  attendance  of  witnesses,5  or  by  destroying  evi- 
dence,6 or  falsifying  a  public  record,7  —  all  agree- 
ments to  cheat  or  injure  the  public  or  individuals,  as 
by  imposing  upon  the  public  a  spurious  article  for 
the  genuine,8  or  by  running  up  the  price  of  goods  at 
an  auction  by  means  of  false  bids,9  or  by  manu- 
facturing false  news  or  using  coercive  means  to  en- 
hance or  depress  the  price  of  property  or  labor,10  or 
by  unlawful  means  to  compel  an  employer  to  in- 
crease,11 or  employees  to  reduce,12  the  rate  of  wages, 
—  all  agreements  to  injure  or  disgrace  others  in  their 

1  See  Regina  v.  Kenrick,  ubi  supra. 

2  Rex  t\  Mawbey,  6  T.  R.  619. 

3  Rex  v.  Johnson,  1  Show.  16. 
*  Rex  v.  Gray,  1  Burr.  510. 

5  Rex  v.  Steventon,  2  East,  362. 

6  State  v.  De  Witt,  2  Hill  (S.  C.)  282. 

7  Cora.  v.  Waterman,  122  Mass.  43. 

8  Com.  v.  Judd,  2  Mass.  329. 

9  Regina  v.  Lewis,  11  Cox  C.  C.  404. 

10  Regina  v.  Blake,  6  Q.  B.  126 ;  Morris  Run  Coal  Co.  t\  Barclay 
Coal  Co.,  68  Pa.  173  ;  Levi  v.  Levi,  6  C.  &  P.  239  ;  Rex  v.  De  Be- 
renger,  3  M.  &  S.  67. 

11  People  v.  Fisher,  14  Wend.  (N.  Y.)  9  ;  Regina  v.  Bonn,  12  Cox 
C.  C.  316;  Com.  v.  Hunt,  4  Met.  (Mass.)  Ill;  State  v.  Donaldson,  32 
N.  J.  151. 

12  Rex  v.  Hammond,  2  Esp.  719. 


108  CRIMINAL   LAW 

character,  property,  or  business,  as  by  seducing  a 
female,1  or  by  abducting  a  minor  daughter,  for  the 
purpose  of  marrying  her  againsl  the  wish  of  her 
parents,-  or  by  hissing  an  actor  or  injuring  a  play,3 
or  by  destroying  one's  property  or  depreciating  its 
value,4  as  by  a  conspiracy  to  stifle  bidding  at  an  auc- 
tion,5 or  by  falsely  charging  a  man  with  being  the 
father  of  a  bastard  child,0  or  by  getting  him  drunk 
in  order  to  cheat  him,"  —  and,  of  course,  all  agree- 
ments to  commit  acts  in  themselves  criminal,  or  to 
be  accomplished  by  criminal  means,  and  all  acts 
contra  bonos  mores,8  —  arc  indictable  conspiracies. 

§  188.  Agreement  the  Gist  of  the  Offence.  —  The  law 
regards  this  unlawful  combination  of  two  or  more 
evil-disposed  persons  as  especially  dangerous,  since 
increase  of  numbers,  mutual  encouragement  and 
support,  and  organization,  increase  the  power  for 
and  the  probability  of  mischief.  And  the  conspir- 
acy is  punished  to  prevent  the  accomplishment  of 
the  mischief.  It  is,  therefore,  entirely  immaterial 
whether  the  agreement  be  carried  out,  or  whether 
any  steps  lie  taken  in  pursuance  of  the  agreement. 
When  the  agreement  is  made,  the  crime  is  complete;9 
and  it  seems  to  be  settled,  without  substantial   dis- 

i  Smith  v.  People,  ^.">  111.  17  ;  Anderson  v.  Com.,  5  Kami.  ( Va.)  Ci27  ; 
State  v.  Savoye,  48  Iowa,  562. 

-  Mifflin  v.  Cum.,  5  W.  &  S.  (Pa.)  461. 
i  lifford  r.  Brandon,  2  Camp.  358. 

4  Stat.'  r.  Ripley,  31  Me.  386. 

6  Levi  v.  Levi,  6  C.  &  P.  239. 

«  Regina  v.  Best,  2  Ld.  Raym.  1167. 

'  Stair  v.  Founger,  1  Dev.  (N.  C.)  357. 

s  State  v.  Buchanan,  5  II.  &  J.  (Md.)  317;  State  v.  Murphy,  f.  Ala. 
705:  young's  Case,  2  T.  R.  734  (cited). 

»  United  States  v.  Cole,  5  McLean  C.  Ct.  513 ;  State  r.  Noyes,  25 


CONSPIRACY.  169 

sent,  that  persons  may  be  indictable  for  conspiring 
to  do  that  which  they  might  have  individually  done 
with  impunity.1 

If  the  conspiracy  be  executed,  and  a  felony  be 
committed  in  pursuance  of  it,  the  conspiracy  disap- 
pears, being  merged  in  the  felony,  and  punishable 
as  part  of  it.2  It  is  otherwise,  however,  when  amis- 
demeanor  is  committed.  Here  there  is  no  merger, 
and  the  conspiracy  is  separately  punishable.3 

§  189.  Intent.  —  As  in  common  law  offences  gen- 
erally, there  must  be  an  actual  wrongful  intent  in 
order  to  render  the  conspiracy  criminal.  Thus,  if  a 
person  be  deceived  into  becoming  a  conspirator,  and 
is  himself  acting  in  good  faith,  he  is  not  guilty.4 
So,  if  two  parties  conspire  to  procure  another  to  vio- 
late a  statute,  in  order  that  they  may  extort  money 
from  him  by  threats  of  prosecution,  they  are  indict- 
able. But  if  the  object  be  to  secure  the  detection 
and  punishment  of  suspected  offenders,  they  are 
not. 5 

§  190.  All  equally  Guilty.  —  All  conspirators  are 
equally  guilty,  whether  they  were  partakers  in  its 
origin,  or  became  partakers  at  a  subsequent  period 
of  the  enterprise ;  and  each  is  responsible  for  all  acts 

Vt.  415  ;  Regina  v.  Best,  2  Ld.  Rayra.  11G7  ;  Hazen  v,  Com.,  23  Pa. 
355  ;  Com.  v.  Judd,  2  Mass.  329  ;  Com.  v.  Ridgway,  2  Ashm.  (Pa.)  247. 
i  State  v.  Buchanan,  5  H.  &  J.  (Md.)  317;    Regina  v.  Gompertz, 
9  Q.  B.  824;  Morris  Run  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  173. 

2  Com.  v.  Blackburn,  1  Duv.  (Ky.)  4;  Com.  v.  Kingsbury,  5  Mass. 
106 ;  State  v.  Mayberry,  48  Me.  218. 

3  State  v.  Murray,  15  Me.  100  ;  People  v.  Mather,  4  Wend.  (N.  Y.) 
229,  265;  People  v.  Richards,  1  Mich.  216;  State  v.  Murphy,  6  Ala. 
765  ;  State  v.  Noyes,  25  Vt.  415. 

4  Rex  v.  Whitehead,  1  C  &  P.  67. 

5  Hazen  v.  Com.,  23  Pa.  355. 


170  CRIMINAL  LAW. 

of  his  confederates,  done  in  pursuance  of  the  original 
purpose. 1 

§  191.  Effect  of  Local  Laws.  —  In  determining  what 
is  indictable  as  a  conspiracy,  much  depends  upon  the 
local  laws  of  the  place  of  the  conspiracy.  It  may 
well  be  that  in  one  jurisdiction  thai  may  be  unlaw- 
ful, and  even  criminal,  which  in  another  is  not;  and 
therefore  it  does  not  follow  that  because  in  one  State 
or  country  where  the  common  law  is  in  force  an 
agreement  to  do  a  particular  act  may  be  a  conspir- 
acy, the  same  would  be  true  of  another.  This  would 
depend  upon  local  considerations.  An  indictment 
and  conviction  in  one  State  may  not  be  a  precedent 
in  another.  Upon  this  point  the  following  observa- 
tions2 are  worthy  of  careful  consideration  :  '"Although 
the  common  law  in  regard  to  conspiracy  in  this  Com- 
monwealth is  in  force,  yet  it  will  not  necessarily  fol- 
low that  every  indictment  at  common  law  for  this 
offence  is  a  precedent  for  a  similar  indictment  in 
this  State.  The  general  rule  of  the  common  law  is, 
that  it  is  a  criminal  and  indictable  offence  for  two 
or  more  to  confederate  and  combine  together,  by 
concerted  means,  to  do  that  which  is  unlawful  or 
criminal,  to  the  injury  of  the  public,  or  portions  or 
classes  of  the  community,  or  even  to  the  rights  of  an 
individual.  This  rule  of  law  may  be  equally  in  force 
as  a  rule  of  the  common  law  in  England  and  in  this 
Commonwealth;  and  yet  it  must  depend  upon  the 
local  laws  of  each  country  to  determine  whether  the 
purpose  to  be  accomplished  by  the  combination,  or 

i  People  v.  Mather,  t  Wend.  (N.Y.)  229:  Ferguson  v.  State,  32  Ga. 

658  ;  Frank  v.  State,  27  Ala.  .37  :  State  v    Wilson,  .'it)  <  lonil.  .".no. 
-  Shaw,  C.  J.,  Com.  V.  Hunt.  4  Met.  (Ma-.s.)  HI. 


CONSPIRACY.  171 

the  concerted  means  of  accomplishing  it,  be  unlawful 
or  criminal  in  the  respective  countries.  All  those 
laws  of  the  parent  country,  whether  rules  of  the  com- 
mon law  or  early  English  statutes,  which  were  made 
for  the  purpose  of  regulating  the  wages  of  laborers, 
the  settlement  of  paupers,  and  making  it  penal  for  any 
one  to  use  a  trade  or  handicraft  to  which  he  had  not 
served  a  full  apprenticeship,  —  not  being  adapted  to 
the  circumstances  of  our  colonial  condition,  —  were 
not  adopted,  used,  or  approved,  and  therefore  do  not 
come  within  the  description  of  the  laws  adopted  and 
confirmed  by  the  provision  of  the  Constitution  al- 
ready cited.  This  consideration  will  do  something 
towards  reconciling  the  English  and  American  cases, 
and  may  .  .  .  show  why  a  conviction  in  England,  in 
many  cases,  would  not  be  a  precedent  for  a  like  con- 
viction here." 


172  CRIMINAL  LAW. 


CHAPTER   V 


CRIMES   AGAINST   RELIGION,    MORALITY,    AND    DECENCY. 


§  193.  Apostasy. 

194.  Blasphemy. 

195.  Adultery. 

196.  Bigamy. 

197.  Seduction. 
19S.  Abduction. 


§  199.  Kidnapping. 

200.  Abortion. 

201.  Lasciviousness. 

202.  Fornication. 

203.  Sodomy. 


§  192.  The  principal  common  law  crimes  of  this 
class  arc  comprehended  under  three  heads:  crimes 
against  Christianity,  such  as  apostasy  and  blas- 
phemy; crimes  against  the  family  relation,  such 
as  adultery,  bigamy,  seduction,  and  abortion;  and 
sexual  crimes,  such  as  lasciviousness,  fornication, 
and  sodomy. 

APOSTAST. 

§  193.  Apostasy  stands  at  the  head  of  the  list  of 
ciiincs  againsl  religion  of  which  the  ancient  com- 
mon law  took  cognizance,  and  is  defined  as  a  total 
renunciation  of  Christianity  by  one  who  has  embraced 
it.1  The  Church  of  England  was  and  is  a  Stale  in- 
stitution, and  it  has  been  deemed  to  he  the  duty  e{ 
the  Slate  to  protect  it,  and  through  it  the  State  re- 
ligion. Hence  the  coimnou  law  punished  whatever 
was  calculated  to  injure  or  degrade  it.  Out  of  this 
view  of  state  policy  grew  the  common  law  crimes  of 

1  4  Bl.  Com.  42. 


APOSTASY.— BLASPHEMY  173 

Apostasy,  Heresy,  Simony,  Non-conformity,  Reviling 
the  Ordinances  of  the  Church,  Blasphemy,  and  Pro- 
fane Cursing  and  Swearing.  None  of  these,  it  is 
believed,  except  the  last  two,  have  ever  been,  or  are 
likely  to  be,  here  recognized  as  crimes  against  the 
State;  for  though,  as  has  already  been  seen,1  Chris- 
tianity is  a  part  of  the  common  law  in  this  country 
as  well  as  in  England,  yet,  as  we  have  no  estab- 
lished church  and  no  established  religion  to  which 
the  State  is  bound  to  extend ,  its  protection,  most 
of  these  offences  are  left  to  the  discipline  of  the 
various  religious  bodies  in  which  they  may  arise. 
Blasphemy  and  profane  cursing  and  swearing,  how- 
ever, being  offences  against  good  morals  as  well  as 
hostile  to  the  spirit  of  Christianity,  have,  by  excep- 
tion, in  this  country  been  held  indictable,2  and  will 
now  be  considered. 

BLASPHEMY. 

§  194.  Blasphemy  is,  literally,  evil-speaking.  But 
only  that  kind  of  evil-speaking  which  injuriously 
affects  the  public  is  taken  notice  of  by  the  common 
law,  and,  under  this  particular  head,  only  the  evil- 
speaking  of  sacred  things.  The  definitions  of  blas- 
phemy differ,  according  to  the  different  views  enter- 
tained by  different  ages  and  countries  as  to  what 
things  are  so  sacred  as  to  require,  in  the  interest  of 
public  order,  their  protection  against  assault.  Thus, 
in  Spain  it  is  held  to  be  blasphemous  to  speak  evil 
of  the  saints ; 3  and  in  Woolston's  Case  4  it  was  held 

1  Ante,  §  2.  *  2  Stra.  834. 

2  See  1  Bl.  Com.,  bk.  4,  c.  4. 

3  Bouv.  Diet.,  Blasphemy. 


l~±  CRIMINAL    LAW 

blasphemous  at  common  law  to  write  against  Chris- 
tianity in  general,  while  it  was  intimated  that  learned 
men  might  dispute  about  particular  controverted 
points.  Though  the  common  law  is  understood  to 
prevail  in  this  country  relative  to  this  crime  except 
so  far  as  it  1ms  been  abrogated  by  statute,  yet  it  can- 
not be  doubted  that  its  application  would,  at  the 
present  day,  be  greatly  restricted.  No  such  discus- 
sion would  now  be  regarded  as  blasphemous,  unless 
executed  in  such  a  manner  as  to  betray  a  malicious 
purpose  to  calumniate  and  vilify,  and  to  such  an  ex- 
tent  as  to  become  an  injury  to  public  morals.  Good 
morals,  being  one  of  the  strong  foundations  of  social 
order,  must  be  encouraged  and  protected.  What- 
ever, therefore,  tends  essentially  to  sap  such  founda- 
tion is  punishable,  upon  the  same  -round  as  is  the 
publication  of  obscene   writing  or  pictures. 

No  category  of  the  sacred  things  with  reference  to 
which  blasphemy  may  lie  committed  has  been  given 
in  any  description  or  definition  of  the  offence  by  the 
courts  or  text-writers.  It  has  been  held  to  be  blas- 
phemous to  deny  the  existence  of  God,  with  the  in- 
tent to  calumniate  and  disparage;1  so,  to  speak  of 
the  Saviour  as  a  "bastard,"  with  like  intent,2  or  as 
an  impostor  and  murderer;8  so,  with  like  intent,  to 
speak  of  the  Holy  Scriptures  as  "a  fable,"  and  as 
containing  -many  lies,"4  or  otherwise  maliciously 
to  revile  them.r'     Christianity  is  a  part  of  the  COm- 

i  Com.  v.   Kneeland,  20  Tick.  (Mass.)  206. 

a  State  v.  Chandler,  2  Harr.  (Del.)  553;  People  v.  Rnggles,  8  Johns. 
(N.  V.)  290. 

8  Rex  v.  Waddington,  1  B.  &  C.  2G. 

4  Qpdegraph  v.  Com.,  11  S  &  R.  (Pa.)  ^4. 

6  Rex  v.  Hetherington,  5  Jur.  (1st  ser.)  ."J2'J. 


ADULTEKY.  175 

mon  law  of  this  country,  and  its  principles  are  so 
interwoven  with  the  structure  of  modern  society 
that  whatever  strikes  at  its  root  tends  manifestly  to 
the  dissolution  of  civil  government.  "Blasphemy," 
says  Chancellor  Kent,1  "according  to  the  most  pre- 
cise definitions,  consists  in  maliciously  reviling 
God  or  religion,"  —  as  satisfactory  a  definition,  per- 
haps, as  can  be  given,  taking  religion  to  mean  that 
body  of  doctrine  and  belief  commonly  accepted  as 
Christianity. 

Whether  the  words  are  spoken  or  written  is  im- 
material. They  must,  however,  if  spoken,  be  heard 
by  somebody,  and,  if  written,  be  published.2 

Many  of  the  States  have  enacted  statutes  prescrib- 
ing the  punishment  which  shall  be  imposed  in  cer- 
tain cases  of  blasphemy ;  but  these  statutes  are  not 
regarded  as  changing  the  common  law,  except  so  far 
as  their  special  terms  provide.  What  was  blas- 
phemy at  common  law  is  still  blasphemy,  subject  to 
the  modifications  of  the  statute.3 

Profanity  is  an  offence  analogous  to  blasphemy, 
which  will  be  further  treated  under  the  head  of 
Nuisance,  of  which  both  offences  are  special  forms.4 

ADULTERY. 

§  195.  Adultery  is  the  unlawful  and  voluntary  sex- 
ual intercourse  between  two  persons  of  opposite 
sexes,  one  at  least  of  whom  is  married.     It  is  not  an 

1  People  v.  Ruggles,  ubi  supra. 

2  People  v.  Porter,  2  Parker  (N.  Y.)  C.  R.  14;  State  v.  Powell,  70 
N.  C.  67. 

3  1  Bish.  Cr.  Law,  §  80,  and  cases  there  cited. 

4  The  question  of  the  unconstitutionality  of  such  laws,  as  restrictive 
of  the  liberty  of  speech  and  of  the  press,  is  elaborately  discussed,  and 
decided  in  the  negative,  by  Shaw,  C.  J ,  in  Com.  v.  Kneeland,  which, 


176  CRIMINAL   LAW. 

offence  at  common  law,1  and  although  in  most  of  the 
States  it  is  now  made  criminal,  it  is  in  some  of  them 
only  cognizable  in  the  ecclesiastical  tribunals.  The 
foregoing  definition  is  based  upon  the  general  terms 
of  the  statutes  of  the  several  States  under  which  it 
is  not  material  which  of  the  parties  is  married,  the 
offence  being  adultery  on  the  part  of  the  married 
person,  and  fornication  on  the  part  of  the  unmar- 
ried.'2 But  it  embraces  a  wider  field,  no  doubt,  than 
conies  within  the  original  idea  of  adultery,  which 
was  the  introduction  of  spurious  offspring  into  the 
family,  whereby  a  man  may  be  charged  with  the 
maintenance  of  children  not  his  own,  and  the  legiti- 
mate offspring  be  robbed  of  their  lawful  inheritance, 
making  it  necessary  that  one  of  the  parties  should 
be  a  married  woman.  In  some  of  the  States,  this 
idea  still  prevails  as  to  criminal  prosecutions  for 
adultery,  while  in  suits  for  divorce  the  intercourse 
of  a  married  man  with  an  unmarried  Avoman  is  held 
to  be  adultery.3  The  statutes  of  the  several  States 
so  differ,  however,  that  while  in  some  States  inter- 
course of  an  unmarried  man  with  a  married  woman 
is  adultery  on  the  part  of  the  man,4  in  others  inter- 
course by  a  married  man  with  an  unmarried  woman 
is  not  adultery  on  the  part  of  the  latter,5  and  in 
others,  an  unmarried  man  cannot  commit  adultery.6 

with  the  cases  in  New  York  and  Pennsylvania  before  cited, are  leading 
cases  n | »'ii  t he  subject. 

1  4  Bl.  Cum.  65. 

2  State  r.  Hutchinson,  36  Mr.  261  ;  Miner  v.  People,  58  111.  59. 
8  State  v.  Armstrong,  4  Minn.  .'!.'{.">. 

*  State  o   Wallace,  9  N    H.  515 ;  State  v.  Pearce,  2  Blackf.  (Ind.) 
318;  State  v.  Weatherby,  4:i  Me.  258. 

5  Cook  v.  State,  n  Ga.  :>•'!  ;  State  v.  Armstrong,  l  Minn.  335. 
e  Respub.  r  Roberts,  2  Dall.  (Pa.)  124. 


ADULTERY.  177 

That  the  parties  cohabited  in  the  honest  belief  that 
they  had  a  right  to,  and  did  not  intend  to  commit  the 
crime,  is  no  defence,  as  has  already  been  shown. 1 

"  Open  and  notorious  adultery  "  cannot  be  shown 
by  the  mere  act  of  adultery.  The  fact  of  openness 
and  notoriety  must  be  proved,  and  that  the  party 
charged  publicly  and  habitually  violated  the  law.2 
So  "  living  in  adultery  "  means  more  than  a  single 
act  of  illicit  intercourse.3 

Where  two  are  charged  with  adultery,  committed 
together,  they  may  be  tried  together;  and  one  may 
be  tried  and  convicted,  though  the  other  has  not  been 
arrested.4  So  where  one  of  the  parties  was  so  in- 
toxicated as  to  be  ignorant  that  the  act  was  com- 
mitted, the  other  may  be  convicted  alone.5  And  it 
has  been  held  that,  where  the  parties  are  tried  sepa- 
rately, and  one  is  acquitted,  the  other  may  be  con- 
victed.6 But  where  they  are  tried  together,  it  would 
of  course  be  impossible  to  acquit  one  and  convict  the 
other. 7 

BIGAMY. 

§  196.  Bigamy,  otherwise  called  polygamy,  or  the 
offence  of  having  a  plurality  of  wives  or  husbands  at 
the  same  time,  was,  like  adultery,  an  offence  of  eccle- 

1  Ante,  §  53  ;  State  v.  Goodenow,  65  Me.  30. 

2  State  v.  Crowner,  56  Mo.  147  ;  People  v.  Gates,  46  Cal.  52 ;  Wright 
v.  State,  5  Blackf.  (Ind.)  358;  State  v.  Marvin,  12  Iowa,  499;  Miner  v. 
People,  58  111.  59 ;  Carrotti  v.  State,  42  Miss.  334. 

3  Smith  v.  State,  39  Ala.  554  ;  Richardson  v.  State,  37  Tex.  346 ; 
Jackson  v.  State,  116  Ind.  464;  Bodiford  v.  State,  86  Ala.  67. 

4  State  v.  Carroll,  30  S.  C.  85. 

5  Com.  v.  Bakeman,  131  Mass.  577. 

6  Alonzo  v.  State,  15  Tex.  App.  378. 
'  State  v.  Rinehart,  106  N.  C.  787. 

12 


[78  CRIMINAL   LAW. 

siastical  cognizance,  but  ultimately  became  a  statu- 
tory offence,1  the  marrying  another  by  a  person 
already  married  and  having  a  husband  or  wife  living 
being  made  a  felony.  This  statute  was  adopted  by 
Maryland  as  one  which  "by  experience  had  been 
found  applicable  to  their  local  and  other  circum- 
stances," and  is  there  held  to  this  day,  except  as  to 
the  punishment,  to  he  a  part  of  the  common  law. 
And  by  the  law  of  Maryland  the  crime  is  a  felony,  as 
doubtless  it  is  in  other  States  where  punishment  in 
the  state  prison  is  or  may  he  the  penalty.2  It  is 
substantially  the  law  in  most,  if  not  all,  of  the  St: 
of  the  Union.  It  is  only  the  second  marriage  which 
is  criminal;  and  therefore,  if  the  first  marriage  be 
in  one  jurisdiction  and  the  second  in  another  juris- 
diction, the  crime  is  only  committed  in.  and  of  course 
only  cognizable  by  the  tribunals  of,  the  latter:3  and 
equally  of  course,  if  the  first  marriage  is  invalid,  the 
second  is  no  offence  anywhere, — in  fact,  there  is 
no  second  marriage.4  'There  is  but  one  lawful  mar- 
riage, and  if  the  first  he  valid  the  second  is  void  :  nor 
is  it  material  that  the  second  would  be  void  on  other 
grounds.  The  offence  consists  in  the  entering  into 
a  void  marriage  while  a  prior  valid  marriage  relation 
exists,''  ami  is  complete  without  cohahitation.6 

i  1  James  T  c.  11  ;  4  El.  Com.  104.  -  Ante,  §  10. 

3  1  Hawk.  P.  (',  bk  I,  c.  43 :  Putnam  v.  Pntnam,  8  Pick.  (M.-iss.) 
433;  People  v.  Mosher,  2  Parker  (N.  Y.i  C.  i:.  195;  Com.  v.  Lane,  L13 
Mass.  458;  Johnson  v.  Com.,  86  Ky.  122. 

4  Suite  >-.  Barefoot,  2  Rich.  (S.C.)  209  ;  Shafher  v  State,  20  Ohio,  1; 
People  v.  Slack,  15 Mich.  193;  McReynolds  v  State,  5Cold  (Tern 

5  People  v.  Brown,  34  Mich.  •'!-;,.i  ;  Regina  v.  Brawn,  1  C.  &  K.  144; 
Reginaw.  Allen,  L.R  1  C.C.367;  Hares  v.  People,25N  r.390;  Rob- 
inson '■  Com., 6  Bosh  (Ky  >309  ;  Carmichael  v.  State,  12  <)i,i,,S[ 

h  Nelms  v  State,  84  Ga.  400;  Gise  v.  torn.,  81  Pa.  428;  Stater. 
Smile  v.  98  Mo.  G05. 


ADULTERY.  179 

A  divorce  may,  and  unless  restricted  in  its  terms 
usually  does,  annul  the  former  marriage,  so  as  to 
make  the  second  one  valid.  In  some  States,  how- 
ever, the  guilty  party  in  a  divorce  for  adultery  on 
his  part  may  be  guilty  of  polygamy  by  marrying 
without  leave  of  court  while  his  divorced  wife  is  liv- 
ing.1 But  after  a  divorce  in  one  State,  a  marriage 
in  another  valid  by  the  laws  of  that  State,  followed 
by  a  return  to  the  State  where  the  divorce  was 
granted,  and  a  cohabitation  there  with  the  second 
wife,  will  not  be  held  polygamous,  unless  the  sec- 
ond wife  be  an  inhabitant  of  the  State  granting  the 
divorce,  and  the  parties  went  to  another  State  to  be 
married  in  order  to  evade  the  law.2  So  if  the  party 
goes  to  another  State  merely  for  the  purpose  of  ob- 
taining a  divorce,  and  obtains  it  by  fraud,  it  will  be 
of  no  avail  to  him  on  his  return  to  the  State  he  left 
and  marrying  again  there.3  And  it  has  been  held 
that  the  crime  may  be  committed  although  the  de- 
fendant in  good  faith  believed  his  former  partner 
was  dead  or  divorced.4  Whether  the  formerly  un- 
married party  to  a  polygamous  marriage,  if  he  mar- 
ries with  knowledge  of  the  other  party's  disability, 
is  also  guilty  of  any  offence,  and  what,  is  an  open 
question,  and  may  be  solved  differently  in  differ- 
ent States,  according  to  the  degree  of  the  principal 


1  Com.  v.  Putnam,  1  Pick.  (Mass.)  136;  Baker  v.  People,  2  Hill 
(N.  Y.)  325. 

2  Com.  v.  Lane,  113  Mass.  458. 

3  Thompson  v.  State,  28  Ala.  12. 

4  Com.  v.  Mash,  7  Met.  (Mass.)  472;  State  v.  Goodenow,  65  Me.  30; 
ant'',  §  53.  But  see,  contra,  Squire  v.  State,  46  Ind.  459  ;  Regina  v.  Tolson, 
23  Q.  B.  D.  168. 


180  CRIMINAL    LAW. 

offence,  whether  felony  or  misdemeanor,  or  by  special 
provisions  of  the  statute.1 

SEDUCTION. 

§197.  It  is  at  least  doubtful  whether  seduction 
was  an  indictable  offence  by  the  old  common  law.2 
It  seems,  however,  to  have  been  the  subject  of  statu- 
tory prohibition  as  long  ago  as  the  time  of  Philip 
and  Mary,3  whereby,  after  reciting  thai  "maidens 
and  women"  arc  "by  flattery,  trifling  gifts,  and  fair 
promises,"  induced  by  "unthrifty  and  light  person- 
ages," and  by  those  who  "for  rewards  buy  and  sell 
said  maidens  and  children,"  it  is  made  unlawful  for 
any  person  or  persons  to  "take  or  convey  away,  or 
cause  to  be  taken  or  conveyed  away,  any  maid  or 
woman  child,  being  under  the  age  of  sixteen  years," 
out  of  the  possession  of  their  lawful  custodian.  There 
seems  to  be  no  reason  to  doubt  thai  this  statute 
became  a  part  of  the  common  law  of  the  Colonies,4 
and  it  seems  to  have  been  adopted  by  statute,  and 
acted  upon  in  South  Carolina  with  certain  modifica- 
tions.—  the  limitation  to  heiresses,  for  instance,  be- 
jn,_r  regarded  as  not  applicable  to  the  condition  of 
society  in  that  jurisdiction.  Indeed,  it  wns  held 
thai  such  a  limitation  was  not  in  the  :ict  itself  fairly 
interpreted.6    The  distinct  ion  between  abduction  and 

i  Sr.,.  Bish.  Cr.  Proa,  §  ">!>i ;  Boggus  ».  State,  "t  6a.  275. 
•-'  Rex  v.  Moor,  2  Mod.  128;  Rex  v.  Marriot,  4   Mod.  ill;  l   ' 
P.  C.  n  8. 

3  4  &  5  Ph.  &  M.  c.  8,  §§  1.  2. 

4  ( 'mil.  j'.  Knowlton,  2  Mass.  530. 

s  State  o,  Findlay,  2  Bay  (S.  C.)418;  Stater.  O'Bannon,  l  Bail,  l  it 
Sic  alsoState  '•.  Tidwell,  5  Strobta.  (S.  C.)  I,  which,  however,  is  a  case 
fur  abduction  under  tin'  third  and  fourth  sections  "f  the  statute. 


SEDUCTION.  181 

seduction  seems  to  be  that  the  former  is  presumed  to 
be  by  force,  or  its  equivalent,  for  the  purposes  of 
marriage  or  gain ;  while  the  latter  is  presumed  to  be 
without  force,  and  by  enticement,  for  the  purpose  of 
illicit  intercourse.1  The  distinction  is  by  no  means 
clearly  made,  and  the  decisions  in  indictments  for 
abduction  and  seduction  will  be  found  interchange- 
ably useful  to  be  consulted.  In  Connecticut,  the 
statute  punishes  "whoever  seduces  a  female";  and 
seduction  is  held  ex  vi  termini  to  imply  sexual  inter- 
course, and  is  defined  to  be  "  an  enticement  "  of  the 
female  "to  surrender  her  chastity  by  means  of  some 
art,  influence,  promise,  or  deception  calculated  to 
effect  that  object  " ;  and  the  seduction  is  proved, 
though  it  appear  that  it  followed  a  promise  of  mar- 
riage made  in  good  faith.2  Here,  too,  as  in  the  cases 
to  be  cited  illustrative  of  the  statutes  against  abduc- 
tion, by  "  previous  chaste  character  "  is  meant  actual 
personal  virtue,3  which  is  presumed  to  exist,  unless  it 
be  shown  that  the  woman  has  had  illicit  intercourse 
with  the  defendant  or  another  prior  to  the  seduc- 
tion,4 and  may  still  exist  if  it  be  shown  that,  though 
at  some  former  time  she  may  have  yielded  to  the  de- 
fendant, she  had  reformed,  and  was  a  chaste  woman 
at  the  time  of  the  seduction.5     And  it  seems  that,  if 

1  State  v.  Crawford,  34  Iowa,  40. 

2  State  i'.  Bierce,  27  Conn.  319;  Dinkey  v.  Com.,  17  Pa.  120; 
Croghan  v.  State,  22  Wis.  444.  See  the  statutes  of  several  States  col- 
lected, 8  Amer.  St.  Rep.  870,  n. 

3  Kenyon  v.  People,  26  N.  Y.  203  ;  Crozier  v.  People,  1  Parker 
C.  C.  453. 

4  Wood  v.  State,  48  Ga.  192  ;  State  v.  Higdon,  32  Iowa,  262;  People 
v.  Brewer,  27  Mich.  134 ;  People  v.  Clark,  33  Mich.  112. 

5  State  v.  Timmens,  4  Minn.  325  ;  State  v.  Carron,  18  Iowa,  372 
But  see  Cook  v  People,  2  T.  &  C.  (N.  Y.)  404. 


182  CRIMINAL   LAW. 

the  alleged  seducer  be  a  married  man,  and  known  to 
be  such  by  the  female  said  to  have  b  ced,  and 

the  means  of  seduction  are  alleged  to  be  a  promisi  of 
marriage,  this  is  uot  such  a  false  and  fraudulent  act 
;  g  could  ''.'ad  to  the  betrayal  of  the  confidence  of  any 
virtuous  woman,  and  has  not  therefore  tin'  element 
of  fraud  which  is  necessary  to  constitute  the  crime 
of  seduction. ' 

The  actual  consent  of  the  woman  is  not  nece 
in  order  to  constitute  the  crime  of  seducl  ion ;  -  bul  it' 
such  force  is  used  as  amounts  to  a  rape,  the  crime  of 
seduction  is  not  committed.3 

ABDUCTION. 

§  198.  Abduction  was  made  a  crime  by  an  old  stat- 
ute,4—  sufficiently  old  to  have  been  broughl  with 
our  ancestors  to  this  country  as  part  of  the  common 
law.5  The  specific  offence  seems  to  have  been  lim- 
ited to  the  taking  aw  ay  for  lucre  —  no  doubi  by  force, 
fraud,  or  fear  —  of  adult  females,  "maid,  widow,  or 
wife,"  having  property,  or  being  heirs  apparent,  for 
the  purpose  of  marriage.     A  taking  for  lucre  and  a 

'  Wood  ».  State,  ubi  supra  ;  People  v.  Alger,  1  Parker  <\  C.  (N  V  ) 
333  See  also  Boyce  v.  People,  55  NY.  644,  and  "  ->.  §  198  Th( 
of  Wood  '■  State,  t8  6a.  192,  is  sometimes  cited  :is  holdiDg  the  doctrine 
that  it  is  ii"t  necessary,  in  order  t"  show  thai  a  woman  is  not  n  virtuous 
■■'  oman,  t>>  prove  thai  she  lias  been  guilty  <>f  previous  illicit  intercourse, 
lmt  it  is  sufficient  to  show  that  her  mind  has  become  deluded  by  un- 
-  and  lustful  desires  Bui  though  this  was  the  view  of  tin-  judge 
who  <r:ivp  the  opinion,  it  was  distinctly  disavowed  by  Warren,  C  •'.. 
and  Trippe,  J.,  —  a  majority  of  the  court,  —  who  held  to  the  contrary. 

-  State  v.  Horton,  100  N.  C.  1 13. 

:!  State  v.  Lewis,  18  [owa,  578;  People  <•.  DeFore,  64  Mich.  693. 

4  3  Hen    VII   c  6 

5  Com.  v  Knowlton,  2  Mass   530. 


ABDUCTION.  183 

marriage  or  defilement  are  essential  to  the  comple- 
tion of  the  offence.1  And  perhaps  the  distinction 
between  this  offence  and  kidnapping  consists  in  this 
limitation,  —  kidnapping  relating  to  the  taking  away 
any  person,  and  more  especially  children,  for  any 
unlawful  purpose.  It  may  be,  also,  that  abduction 
might  be  complete  without  taking  the  person  ab- 
ducted out  of  the  realm,  but  only  from  home  to  some 
other  place  within  the  realm ;  while  it  was  essential 
to  the  act  of  kidnapping  that  the  person  seized  should 
be  taken  out  of  the  country,  or,  at  all  events,  seized 
with  that  intent.2  It  is  now  an  offence  for  the  most 
part,  if  not  entirely,  regulated  by  statute. 

These  statutes  variously  describe  and  define  the 
offence.  While  the  substance  is  substantially  the 
same  in  all,  yet  there  are  specific  differences  which 
distinguish,  and  leave  it  uncertain,  till  a  comparison 
of  the  statutes  solves  the  question,  whether  the  de- 
cisions in  one  State  are  applicable  to  the  statutes  in 
another.  Under  these  several  statutes  it  has  been 
held  that  abduction  "  for  the  purpose  of  prostitution, " 
means  for  general  and  promiscuous  illicit  inter- 
course. A  mere  seduction  and  illicit  intercourse 
with  the  seducer  does  not  amount  to  prostitution.3 
But  if  the  purpose  is  that  the  woman  shall  enter  into 
such  a  course  of  life  as  shall  constitute  prostitution 
or  concubinage,  the  crime  is  at  once  committed ;  no 
long  continuance  of  the  life  is  necessary.4     Where  a 

i  Baker  v.  Hall,  12  Coke,  100. 
3  See  post,  §  199. 

3  Com.  v.  Cook,  12  Met.  (Mass.)  93;  State  v.  Stoyell,  54  Me  24, 
State  v.  Ruhl,  8  Iowa,  447  ;  People  v.  Parshall,  6  Park.  (N.Y  )  C.  R.  129 

4  Henderson  v.  People,  124  111.  607. 


184  CRIMINAL  LAW. 

statute  provides  I  hat  the  person  so  abducted  must  have 
been  of  previous  chaste  character,  the  abduction  of  a 
person  who  had  been  previously  a  prostitute  is  not 
within  the  statute,  unless  she  had  reformed.1  If  she 
had  previously  had  intercourse  with  the  defendant 
only,  it  seems  that  this  cannot  be  held  to  be  conclu- 
sive of  previous  unchaste  character.  The  unchastity 
must  be  with  other  men.2  In  a  case  in  Indiana,8  a 
distinction  is  made  between  the  phrase  "of  previous 
chaste  character,"  as  used  in  the  statute  against 
abduction,  and  the  phrase  "of  good  repute  for  chas- 
tity," used  in  another  section  of  the  same  statute 
against  seduction.  In  the  former  ease,  a  si:; 
proven  act  of  illicit  intercourse  is  admissible  in  de- 
fence, as  the  issue  is  actual  personal  virtue;  while 
in  the  latter  case  it  might  not  be,  as  reputation  is 
the  issue.  But  the  distinction  is  between  "charac- 
ter" used  in  one  statute,  and  "repute  "  used  in  the 
other;  and  it  may  be  doubted  if  the  distinction  is 
not  too  fine.  Very  high  authorities  treat  character 
and  reputation  as  substantially  identical.4 

It  is  also  held  under  these  statutes  that  within  the 
meaning  of  the  term  "forcible  abduction"  are  in- 
cluded cases  where  the  mind  of  the  person  is  operated 
upon  by  falsely  exciting  fears,  by  threats,  fraud,  or 
other  unlawful  or  undue  influence  amounting  sub- 
stantially  to  a  coercion  of  the  will,  and  an  effective 
substitute  for  actual  force.5     And  a    child   of   four 

1  Carpenter  v.  People,  8  Barb.  (X.  Y.)  603;  State  ,-.  Carron,  18 
Iowa,  372. 

-  state  ,-.  WiUnpaugh,  11  Mich.  27$.       3  Lyons  >-.  State,  52  hid.  426. 

4  See  1  Greenl.  Ev.,  ?;  461  and  notes. 

6  Moody  i\  People,  20  111.  315  ;  People  v.  Pars  hall,  6  Park.  (N.  V  .) 
C.  E.  129. 


KIDNAPPING.  —  ABORTION.  1 85 

years  old  is  incapable  of  consenting  to  be  taken  away 
by  the  father  from  the  mother.1  Where  a  statute 
limits  the  offence  to  the  abduction  of  persons  within 
a  specified  age,  it  is  held  that  the  fact  that  the  ab- 
ductor did  not  know,  or  even  the  fact  that  he  had 
reason  to  believe,  and  did  believe,  that  the  person 
taken  away  was  not  within  the  designated  age,  is  im- 
material.    The  act  is  at  the  peril  of  the  perpetrator.2 

KIDNAPPING. 

§  199.  Kidnapping  is  defined  by  Blackstone  as  the 
forcible  abduction  or  stealing  away  of  a  man,  woman, 
or  child  from  his  own  country  and  sending  him 
away  to  another.3  And  this  definition  has  been 
adopted  with  the  modification  that  the  carrying  away 
need  not  be  into  another  country.4  It  is  false  im- 
prisonment, with  the  element  of  abduction  added.5 
And  here,  as  in  false  imprisonment,  fraud  or  fear 
may  supply  the  place  of  force.6 

ABORTION. 

§  200.  Although  there  is7  the  precedent  of  an  in- 
dictment for  an  attempt  to  procure  an  abortion  as  a 
crime  at  common  law,  and  it  has  been  said  by  a  dis- 
tinguished text-writer8  that  the  procuring  an  abor- 

1  State  v.  Farrar,  41  N.  H.  53.     See  also  ante,  §  197. 

2  State  v.  Ruhl,  8  Iowa,  447;  Regiua  v.  Prince,  13  Cox  C.  C.  138; 
ante,  §  56. 

3  4  Bl.  Com.  219  ;  Click  v.  State,  3  Texas,  282. 

4  State  v.  Rollins,  8  N.  H.  550. 

5  Click  v.  State,  3  Texas,  282. 

6  Moody  v.  People,  20  111.  315;  Hadden  v.  People,  25  N.  Y.  373; 
Payson  ».  Macomber,  3  Allen  (Mass.)  69.  See  also  Abduction; 
False  Imprisonment. 

7  3  Chitty  Cr.  Law,  557.  8  o  Whart.  Cr  Law,  §  1220. 


186  CRIMINAL   LAW. 

tion  is  an  indictable  offence  at   common  law.   it  is 
found  upon  examination  that  the  precedenl   referred 

for  an  assault,  and  the  case  '  relied  upon  as  an 
authority  is  also  lor  an  assault.  The  better  opinion 
is.  that  tin'  procuring  an  abortion  is  uot,  as  such,  an 
indictable  offence  at  common  law,  although  the  acts 
done  in  pursuance  of  such  a  purpose  do  undoubtedly 
amount  to  other  offences  which  the  common  law 
recognizes  and  punishes.  Hut  the  procuring  of  an 
ahull  inn  with  the  consent  of  the  mother  before  she 
is  quick  with  child  is  not,  at  common  law,  even  an 
assault,  the  consenl  of  the  mother  effectually  doing 
away  with  an  element  necessary  to  the  constitution 
of  an  assault.'2  The  procuring  it  after  that  time  is  a 
misdemeanor,  and  may  lie  a  murder.3 

Under  a  statute  punishing  the  procurement  of  an 
abortion  "by  means  of  any  instrument,  medicine, 
din--,  or  other  means  whatever."  the  indictment 
charging  that  the  defendant  beal  a  certain  pregnant 
woman  with  intent  to  cause  her  to  miscarry,  it  was 
held  thai  the  case  was  not  made  out  by  proof  that 
the  defend, nit  l>eat  her,  and  caused  her  thereby  t>> 
miscarry,  unless  the  beating  was  with  that  intent.4 

This  view  of  the  common  law  doubtless  Led  to  such 
statutes  as  prevail  in  .Massachusetts.  Vermont,  and 
New  York,   and  probably  mosl  of  the  other  States, 

1  Com.  v.  Demain,  6  Pa.  L.  J.  29.     A   later  case  in  Pennsylvania, 

■  it.  holds  that  an  indictment  will  lie.     Mill-  v.  Com.,  18  !':■ 
-  Mitchell  v.  Com.,  78  Ky.  204;  Cora.  >•.  Parker,  '.'  Met.  (Mass.) 

;  Regina  v.  West,  2  C.  &  K.  784  :  Smith  v.  State,  83  Me.  48  j  State 
v.  Cooper,2Zab.  (N.J.)  52;  Com.t>.  Parker,  9  Met.  (Mass  21  I;  Evans 
v.  People,  -to  N.  V   86 

4  Slattery  v.  People,  70  111.  217  ante,  §  32. 


LASCIVIOUSNESS.  187 

punishing  the  procurement  of  a  miscarriage,  or  the 
attempt  to  procure  it,  under  which  it  is  held  that 
the  consent  of  the  woman  is  no  excuse,  and  that  the 
crime  may  be  committed  though  the  child  be  not 
quick.1  And  under  the  New  York  statute  the  woman 
who  takes  drugs  to  effect  a  miscarriage  is  equally 
guilty  with  the  person  who  administers  them  to  her.2 
Yet  she  is  not  strictly  an  accomplice,  the  law  re- 
garding her  rather  as  a  victim  than  a  perpetrator.3 

Upon  general  principles,  as  we  have  already  seen, 
an  attempt  to  commit  a  statutory  misdemeanor  or 
felony  is  itself  a  misdemeanor,  indictable  and  pun- 
ishable as  such  at  common  law.4 

LASCIVIOUSNESS. 

§  201.  Lasciviousness  is  punishable  at  common  law, 
and  embraces  indecency  and  obscenity,  both  of  word 
and  act;  as  the  indecent  exposure  of  one's  person  in 
a  public  place,5  or  the  use  of  obscene  language  in 
public.6  It  is  immaterial  how  many  or  how  few 
may  see  or  hear,  if  the  act  be  done  in  public  where 
many  may  see  or  hear."  And  the  permission  of 
those  for  whose  decent  appearance  one  is  responsi- 
ble to  go  about  publicly   in  a  state   of  nudity  has 

i  Com.  v.  Wood,  11  Gray  (Mass.)  85;  State  v.  Howard,  32  Vt.  380; 
People  v.  Davis,  56  N.  Y.  95 ;  Mills  v.  Com.,  13  Pa.  631 ;  Cobel  v.  Peo- 
ple, 5  Park.  (N.Y.)  C.  K.  348.  See  also  State  v.  Murphy,  3  Dutch. 
(N.  J.)  112  ;  Willey  v.  State,  46  Ind.  363 ;  State  v.  Vau  Houten,37  Mo. 
357  ;  State  v.  Fitzgerald,  49  Iowa,  260. 

2  Frazer  v.  People,  54  Barb.  (N.  Y.)  306. 

3  Dunn  v.  People,  29  N.  Y.  523  ;  ante,  §  76. 

4  Ante,  §  18. 

6  State  v.  Rose,  32  Mo.  560. 

6  State  v.  Appling,  25  Mo.  315. 

i  State  v..  Millard,  18  Vt.  574  ;  Van  Houten  v.  State,  46  N.  J.  L.  16. 


138  CRIMINAL   LAW. 

been  held  to  be  lewdness  on  the  pari  of  the  person  so 
permitting.3  Under  statutes  againsl  lascivious  be- 
havior and  Lascivious  carriage,  —  substantially  the 
same,  —  it  seems  to  be  the  law  that  the  offence  may 
be  committed  by  exposure  of  the  person  and  solicita- 
tion to  sexual  intercourse,  without  the  consent  of 
the  party  so  solicited,  although  it  be  not  done  in  a 
public  place.2  This,  however,  would  not  amount  to 
open  and  gross  Lewdness.3  Lascivious  cohabitation 
implies  something  more  than  a  single  act  of  sex- 
ual intercourse ; J  it  must  be  shown  that  the  parties 
lived  together  as  man  and  wife,  not  being-  legally 
married.5 

FORNICATloX. 

§  202.  Fornication  is  the  unlawful  sexual  inter- 
course of  an  unmarried  person  with  a  person  of  the 
opposite  sex,  whether  married  or  unmarried.  In 
some  States  such  intercourse  with  a  married  person 
is  made  adultery.  Like  adultery,  it  was  originally 
of  ecclesiastical  cognizance  only;  and  without  cir- 
cumstances of  aggravation,  which  will  make  it  part 
and  parcel  of  another  offence,  it  is  not  believed  to 
have  been  recognized  as  an  offence  at  common  law  in 
this  Country.6  The  statutes  of  the  several  States, 
however,  generally,  if  not  universally,  make  it  pun- 
ishable under  certain  circumstances  of  openness  and 

i  Britain  >•.  stato,  :?  Bumph.  (Tenn  )  203. 

■•;  state  >-.  Millard,  is  Vt.  :>:t,  Fowler  o.  Stair,  :>  Day  (Conn  |  Bl 

See  als<.  Dillard  v.  State, 41  Ga.  278;  Com.  v   Wardell,  128  Mass  52. 

8  Com.w.Catlin,  l  Mass.  8;  but  see  Com.  i>.  Wardell,  128  Mass.  52, 53. 

'•   Stair  v    .Marvin,   12   fowa,   I'.'1.',   Com.  V.  ('aid',  10  Ma.-s.   I.".::. 

6  Pruner  v  Com.,  82  Va.  115. 

Jtateu   Rahl,  33  Tex.  76 ;  Stater  Cooper,  16  Vt.  551. 


FORNICATION.  —  SODOMY,  139 

publicity,  which  perhaps  would  make  it  indictable 
if  there  were  no  statute.1  And  where  it  is  indict- 
able, it  has  been  frequently  held  that,  on  failure  to 
prove  the  marriage  of  the  party  indicted  for  adul- 
tery, he  may  be  found  guilty  of  fornication,  if  the 
circumstances  alleged  and  proved  would  warrant  a 
conviction  on  an  indictment  for  fornication.'2 

SODOMY. 

§  203.  Sodomy,  otherwise  called  buggery,  bestiality, 
and  the  crime  against  nature,  is  the  unnatural  copu- 
lation of  two  persons  with  each  other,  or  of  a  human 
being  with  a  beast.3  This  crime  was  said  to  have 
been  introduced  into  England  by  the  Lombards,  and 
hence  its  name,  from  the  Italian  bugarone.*  It 
may  be  committed  by  a  man  with  a  man,  by  a  man 
with  a  beast,5  or  by  a  woman  with  a  beast,  or  by  a 
man  with  a  woman,  — his  wife,  in  which  case,  if  she 
consent,  she  is  an -accomplice.6  But  the  act,  if  be- 
tween human  beings,  must  be  per  cmum,  and  the 
penetration  of  a  child's  mouth  does  not  constitute 
the    offence.7      If   both   parties    consent,    both    are 

1  Anderson  v.  Com.,  5  Rand.  (Va.)  627;  State  v.  Cooper,  10  Vt. 
551 ;  Territory  v.  Wliitcomb,  1  Mont.  359 ;  State  v.  Moore,  1  Swan 
(Tenn.)  136;  4  Bl.  Com.  65,  and  note  by  Chitty.  See  also  Cook  v. 
State,  1 1  Ga.  53. 

a  Pespublica  v.  Roberts,  2  Dall.  (Pa.)  124  ;  State  v.  Cowell,  4  Ired. 
(N.  C.)  231.  See  also  Com.  v.  Squires,  97  Mass.  59  ;  State  v.  Cox,  2 
Taylor  (N.  C.)  165. 

3  l  Hawk.  P.  C.  (8th  ed.)  357. 

4  Coke,  3d  Inst.  58. 

8  A  fowl  is  now  held  in  England  to  be  a  beast :  Regina  v.  Brown, 
24  Q.  B.  D.  357. 

6  Regina  v.  Jellyman,  8  C.  &  P.  604. 

7  Rex  v.  Jacobs,  R.  &  R.  C.  C.  331. 


UlO  CRIMINAL    LAW. 

guilty,  unless  one  lie  under  1'1  •  age  of  discretion.1 
Under  the  old  common  law,  both  penetration  and 
emission  were  accessary  to  constitute  the  offence;2 
luit  since  the  statute  of  9  Geo.  IV.  c.  31,  §  L8,  pern  - 
tration  only  is  necessary.8  Before  this  statute, 
copulation  with  a  fowl  was  nol  an  offence,  as  a  fowl 
is  not  a  "beast";  but  this  statute  covers  copulation 
with  any  "animal."  If  was  always  regarded  as  a 
very  heinous  offence,  and  was  early  denounced  ;is 
"the  detestable  and  abominable  crime  amongst 
Christians  not  to  be  aamed,"  and  was  a  felony  pun- 
ishable with  death.4  Bui  though  it  is  still  a  felony 
in  most  of  the  States,  it  is,  we  believe,  nowhere 
capitally  punished.  In  some  of  the  States,  where 
there  is  no  crime  not  defined  in  the  code,  it  seems 
to  have  been  purposely  dropped  from  the  category  ot 
crimes.5  The  origin  of  the  term  "sodomy"  may  be 
found  in  the  nineteenth  chapter  of  Genesis.  The 
practice  was  first  denounced  by  the  Levitical  law  as  a 
heathen  practice,  and  amongst  non-Christ  iau  nat  ions, 
at  the  present  day,  it  is  not  generally  regarded  as 
criminal. 

1  Regina  0.  Allen,  1  Den.  C.  C.  364;  Coke,  3d  Inst.  58. 

2  Rex  r.  Duffin,  1  R.  &  R.  C.  C.  365. 

8  Rex  v.  Reekspear,  1  Moo.  C.  C.  342. 
*  1  Hawk.  P.  ('.  (8th  ed.)  357. 

5  Bui  few  cases  occur  in  the  reports     Com.  v.  Thomas,  1  Va.  Cas 
307  ;  Lamberts  m  v.  People,  5  Parker  (N  V  1  C.  R.  200;  Com.  v.  Snow, 

ill  Mass.  HI;  IV 11  v.  State,  32  Texas,  378,  where  il  is  held  by  ;i 

ili\  ided  opinion  no*  to  be  an  offence,  on  the  ground  that  it  is  nol  defined 
nit.-,  do  uihli  fined  offence  being  punishable  there.     See  also  1  »a\  i> 
H    &  ,1.  (Md.)  154  .  Esti  a  0.  Cart<  r,  10  [owa,  400. 


ASSAULT.  191 


CHAPTER  VI. 

OFFENCES   AGAINST   THE   PERSON. 


§  205.   Assault. 

217.  Mayhem. 

218.  Homicide. 


§  240.   False  Imprisonment. 
241.   Eape. 
245.    Robbery. 


§  204.  The  principal  offences  against  the  person 
may  be  divided  into  three  classes:  first,  an  injury  to 
the  person,  ranging  in  enormity  from  a  simple  as- 
sault to  homicide;  secondly,  a  false  imprisonment  of 
the  person;  and  thirdly,  composite  crimes,  in  which 
a  wrongful  act  is  committed  by  the  use  of  violence 
to  the  person,  such  as  robbery  and  larceny  from  the 
person,  and  rape. 


ASSAULT. 


§  205.  Strange  as  it  may  seem,  there  is  no  defini- 
tion of  an  assault  which  meets  unanimous  acceptance. 
The  more  generally  received  definition  is  that  of 
Hawkins,1  to  wit:  "An  attempt  or  offer  with  force 
and  violence  to  do  a  corporal  hurt  to  another."  We 
have  already  seen,2  that  to  constitute  an  attempt 
there  must  be  some  overt  act  in  part  execution  of  a 
design  to  commit  a  crime ;  and  upon  the  theory  that 
an  assault  is  but  an  attempt,  it  is  held  that  a  mere 
purpose  to  commit  violence,  unaccompanied  by  any 
effort  to  carry  it  into  immediate  execution,  is  not  an 
assault.     The  violence  which  threatens  the  "corpo- 

i  1  P.  C.  (8th  ed.)  110.  2  Ante,  §  183. 


Ifio  CRIMINAL  LAW. 

ral  hurt,"  or,  as  it  is  frequently  expressed,  "per- 
sonal injury,"  or  "bodily  harm,"  must  be  set  in 
motion.1  11  is  the  beginning  of  an  act,  or  of  a  se- 
ries of  acts,  which,  if  consummated,  will  amount  toa 
battery,  which  is  the  unlawful  application  of  violence 
to  the  person  of  another.  One,  therefore,  who, 
within  such  proximity  to  another  that  he  may  inflict 
violence,  lifts  his  hand,  either  with  or  without  a 
weapon,  with  intent  to  strike,  or  lilts  a  stone  with 
intent  to  hurl  it,  or  seizes  a  loaded  gun  with  intent 
to  fire  it,  is,  upon  all  the  authorities,2  guilty  of  an 
assault. 

The  hotter  view  would  seem  to  lie  that  an  assault 
includes  any  putting  of  another  in  reasonable  fear  of 
immediate  personal  violence.3 

§  206.  Battery.  —  A  battery  is  the  unlawful  touch- 
ing of  another,  or  of  the  dress  worn  by  another,  with 
any  the  least  violence.1  An  act  which  begins  as  an 
assault  ordinarily  ends  as  a  battery,  and  merges  in 
it;  and  since  on  an  indictment  for  battery  the  de- 
fendant uny  be  found  guilty  of  a  simple  assault,  it 
is  an  invariable  rule  to  indict  for  assault  and  battery. 
For  this  reason,  the  two  crimes  are  not  carefully  dis- 
tinguished; the  general  name  assault  being  applied 
indifferently  to  both.      No  useful  end  would  lie  served 

i  People  '•.  Y.^las.  27  Pal.  630;   Smith  v.  State,  39  Miss.  521. 

2  United  States  v.  Hand,  2  Wash  (TT.  S.  C.  Ct.)  435  State  v.  M<>r- 
gan,  3  [red.  (N.  C.)  186;  Higginbotham  >•.  State.  2.'!  Tex.  574.  The 
Penal  ( lode  of  Texas  defines  an  assault  as  "  Any  attempt  to  commit  a 
battery,  it  any  threatening  gesture,  showing  in  itself,  or  by  words 
accompanying  it,  an  immediate  intention,  coupled  with  an  ability, to 
commit  a  battery."     Art.  470. 

'■  Steph.  Dig.  Cr.  Law,  art.  241  ;  Regina  >•.  St.  George,  9  C.  &  P. 
483;  State  v.  Davis,  l  fred.  (X.  C.)  125 

1  Steph.  Dig.  Cr.  Law,  art.  241  ;  Regina  v.  Day,  1  Cox  C.  C.  207. 


ASSAULT.  193 

by  insisting  on  a  distinction  not  made  by  the  courts. 
In  the  following  discussion,  therefore,  the  term  as- 
sault will  be  used  indifferently  to  designate  true 
assault  and  the  completed  battery. 

§  207.  Authority.  —  The  force  to  constitute  an  as- 
sault must  be  unlawful.  A  parent,  or  other  per- 
son standing  in  loco  parentis,  may  use  a  reasonable 
amount  of  force  in  the  correction  of  his  child.1  So  a 
schoolmaster  may  correct  his  pupil ;  or  a  master  his 
apprentice ; 2  but  the  master's  authority  is  personal, 
and  cannot  be  delegated  to  another,  as  can  that  of  a 
parent.3  An  officer  may  also  use  such  force  in  mak- 
ing an  arrest ; 4  and  so,  generally,  may  all  persons 
having  the  care,  custody,  and  control  of  public  insti- 
tutions, and  charged  with  the  duty  of  preserving- 
order  and  preventing  their  wards  from  self-injury, 
such  as  the  superintendents  of  asylums  and  alms- 
houses.5 So  the  conductor  of  a  railway  train  may 
forcibly  put  from  his  train  any  person  guilty  of  such 
misconduct  as  disturbs  the  peace  or  safety  of  the 
other  passengers,  or  violates  the  reasonable  orders 
of  the  company.6  And  so  may  the  sexton  of  a 
church7  in  a  like  way  protect  a  lawful  assembly 
therein.  This  right,  however,  must  be  exercised 
with  discretion,  and  must  not,  in  degree  or  in  kind 
of  force,  surpass  the  limits  of  necessity  and  appro- 

1  State  v.  Alford,  68  N.  C.  322. 

2  Gardner  v.  State,  4  Ind.  632. 

3  People  v.  Philips,  1  Wheeler  C.  C.  155. 

4  Golden  v.  State,  1  S.  C.  292. 

5  State  v.  Hull,  34  Conn.  132. 

6  People  v.  Caryl,  3  Park.  C.  C.  (N.  Y.)  326  ;    State  v.  Goold,  53 
Me.  279. 

7  Com.  v.  Dougherty,  107  Mass.  243. 

13 


194  CRIMINAL  LAW. 

priateness.1  The  modern  tendency  is  to  construe 
strictly  against  the  person  using  the  force.  It  was 
formerly  held  that  a  husband  might  correct  his  wife 
by  corporal  chastisement;  but  this  is  now  denied  to 

he  law  in  some  of  the  States,  and  it  is  doubtful  if 
the  practice  would  be  upheld  by  the  courts  of  any 
State.2  The  mere  relationship  of  master  and  ser- 
vant, the  former  not  being  charged  with  any  duty  of 
.■duration  or  restraint,  will  not  now,  whatever  may 
have  been  the  law  heretofore,  authorize  the  use  of 
force.8 

§  208.  Consent.  —  Wheu  a  person  sui  juris,  without 
fraud  or  coercion,  consents  to  the  application  of 
force,  certainly,  it'  the  force  be  such  as  may  be  law- 
fully consented  to,  there  can  he  no  assault.  It  has 
been  accordingly  held  that,  it'  a  woman  consents  to 
her  own  dishonor,4  or  to  the  use  of  instruments 
whereby  to  procure  an  abortion,6  or  one  requests  an- 
other to  lash  him  with  a  whip,6  these  several  acts 
do  not  constitute  assaults,  because  they  are  assented 
to  by  the  parties  upon  whom  the  force  is  inflicted: 
nnd  the  same  has  been  held  where  two  men  privately 
spar  together.7 

i  Com.  v.  Randall,  4  Gray  (Mass.)  86. 

2  Com.  v.  McAfee,  n^  Mass    158;  State  v.  Oliver,  70  N.  C.  60; 
nan  v.  State.  42  Tex.  221  :    Fulgham  v.  State,  46  Ala.  143.     - 
Mr.  Green's  note  to  Com.  v.   Barry,  2  Green's  Cr.  Law  Rep. 
285. 

:5  Matthews  v.  Terry,  10  Conn.  455. 

4  People  v.  Bransby,  32  X.  Y.  525;    Regina  v.  Meredith,  8  C.  &  P. 

Smith  p.  State,  12  Ohio  St   466. 

5  Com.  v.  Parker,  9  Met.  (Mass.)  263  ;  State  w.  Cooper.  2  Zab. 
(N.J.)  52. 

8  State  o   Beck,  1  Hill  (S.C  )  363. 
:  Regina  v.  Yovae,  10  Cox  C.  C.  371. 


ASSAULT.  195 

But,  as  has  been  seen,1  no  one  has  a  right  to  con- 
sent to  an  act  which  is  liable  to  cause  severe  bodily 
harm  to  himself  or  another,  or  to  lead  to  a  breach 
of  the  peace.  Though  consent  in  such  a  case  may 
be  shown  to  negative  a  putting  in  fear,  yet  if  there 
has  been  an  actual  battery  the  consent  will  be  no 
excuse.  So,  if  two  men  publicly  engage  in  a  fight 
with  fists,  each  may  be  -indicted  for  an  assault  and 
battery.2  For  consent  obtained  by  fraud  or  false 
pretences,  or  threats  of  such  a  character  as  to  over- 
power the  will,  is  no  consent.3  And  the  consent 
must  be  positive.  A  mere  submission,  as  of  an 
idiot,4  or  of  a  child,5  or  of  a  person  asleep,6  or  other- 
wise unconscious,  or  unable  to  understand  what  is 
going  on,  is  not  equivalent  to  consent. 

§  209.  Consent  secured  by  Fraud.  —  In  some  cases 
there  may  be  an  assault  when  the  injured  party  ap- 
parently consents  to  the  unlawful  act,  as  where  a 
female  patient  is  deceived  by  a  physician  into  con- 
senting that  improper  liberties  should  be  taken  with 
her.7  So,  where  a  female  pupil  of  tender  years,  by 
the  dominating  power  of  her  teacher,  is  induced, 
without  resistance,  to  permit  the  same  thing.8 

1  Ante,  §  23. 

2  Regina  v.  Lewis,  1  C.  &  K.  419  ;  Com.  v.  Colberg,  119  Mass.  350 ; 
State  v.  Underwood,  57  Mo.  40;  State  v.  Lohoii,  19  Ark.  577.  See, 
however,  contra,  Champer  v.  State,  14  Ohio  St.  437 ;  Duncan  v.  Com., 
6  Dana  (Ky.)  295. 

3  Regina  v.  Case,  4  Cox  C.  C.  220 ;  Eegina  v.  Saunders,  8  C.  &  P. 
265  ;  Regina  v.  Williams,  8  C.  &  P.  286 ;  Regina  v.  Hallett,  9  C.  &  P. 
748;  Regina  v.  Woodhurst,  12  Cox  C.  C.  443. 

*  Regina  v.  Fletcher,  8  Cox  C.  C.  131. 

5  Regina  v.  Lock,  12  Cox  C.  C.  244 ;  Hays  v.  People,  1  Hill(N.Y.)351. 

6  Regina  v.  Mayers,  12  Cox  C.  C.  311. 

7  Regina  v.  Case,  4  Cox  C.  C.  220 ;  s.  c.  1  Den.  C.  C.  580. 

8  Regina  v.  Nichol,  R.  &  R.  130  ;  Regina  v.  Lock,  12  Cox  C  C.  244. 


196  CRIMINAL   LAW. 

Consent,  therefore,  is  to  be  distinguished  from  sub- 
mission. An  idiot,1  or  a  person  asleep2or  otherwise 
insensible,8  or  demented,*  or  deceived,6  may  submit, 
but  lx-  docs  not  consent.  Consent  is  the  affirmative 
act  of  an  unconstrained  will,  and  is  not  sufficiently 
proved  by  the  mere  absence  of  dissent.6 

§  210.  Degree  of  Force.  Mode  of  Application.  —  The 
degree  of  force  used  is  immaterial,  provided  it  be 
unlawful.  The  least  intentional  touching  of  the 
person,  or  of  that  which  so  appertains  to  the  person 
as  to  partake  of  its  immunity,  if  done  in  anger,  is 
sufficient.  Thus,  to  throw  water  upon  the  clothes,7 
to  spit  upon,  push,  forcibly  detain,  falsely  imprison, 
and  even  to  expose  to  the  inclemency  of  the  weather, 
are  all  acts  which  have  respectively  been  held  to 
constitute  an  assault,8  So  any  forcible  taking  of 
property  from  the  possession  of  another,  by  overcom- 
ing the  slightest  resistance,  is  an  assault,9  Nor 
need  the  application  of  force  be  direct.  If  the  force 
unlawfully  set  in  motion  is  communicated  to  the 
person,  whether  directly,  by  something  attached  to 
the  person,  as  a  cane  or  a  cord,  or  indirectly,  as 
where  a  squib  is  thrown  into  a  crowd,  and  is  tossed 

1  Regina  v.  Fletcher,  8  Cox  C.  C.  131. 

2  Regina  v.  Mayers,  12  Cox  C.  C.  nil. 

3  Com.  v.  Burke,  105  Mass.  376  ;  People  v.  Qnin,  50  Barb.  (X.  V.) 
128. 

4  Regina  v.  Woodhurst,  12  Cox  C.C.  443;  Regina  <•  McGavaran, 
6  Cox  C.  C.  64. 

5  Com.  v.  Stratton,  114  Mass.  303. 

«  Regina  <:  Lock,  12  Cox  C.  C.  244. 
•   People  r.  McMurray,  i  Wheeler  C.  C.  (X.  V.)  62. 
8  1  Russ.  on  Crimes,   (5th  ed.)  957;  State  v.  Baker,  65  X.  C.  332  ; 
Long  v.  Rogers,  17  Ala.  540. 
"  SMi.  v.  Gorham,  5;.  X  II.  152. 


ASSAULT.  197 

from  one  to  another,  it  is  sufficient.  But  the  mere 
lifting  a  pocket-book  from  the  pocket  of  another,  or 
snatching  a  bank-bill  from  his  hand,  without  over- 
coming any  resisting  force,  is  not  an  assault.1  But 
setting  a  dog  or  a  crowd  upon  another,  or  driving 
against  the  carriage  in  which  he  is  seated,  or  strik- 
ing the  horse  he  is  riding  or  driving,  in  either  case 
to  his  injury,  will  constitute  an  assault.2 

§  211.  Mode  of  Application.  —  It  was  formerly  held 
that  to  put  a  deleterious  drug  into  the  food  of  an- 
other, if  it  be  eaten  and  take  effect,  was  an  assault.3 
Upon  subsequent  consideration,  it  was  held  in  Eng- 
land that  the  direct  administration  of  a  deleterious 
drug,  without  force,  though  ignorantly  taken,  is  not 
an  assault,4  —  overruling  the  previous  case.  A 
contrary  result,  however,  has  been  reached  in  this 
country  by  a  court  of  high  authority,  and  with  the 
reasoning  of  the  two  just  cited  cases  before  it,  —  the 
doctrine  of  the  earlier  case  being  approved;  and  it  is 
said  that  it  cannot  be  material  whether  the  force  set 
in  motion  be  mechanical  or  chemical,  or  whether  it 
acts  internally  or  externally.5 

The  detention  or  imprisonment  of  a  person  by 
merely  confining  him  in  a  place  where  he  happens  to 
be,  as  by  locking  the  door  of  the  room  where  he  lies 
asleep,  without  the  use  of  any  force  or  fraud  to  place 
him  there,  though  illegal,  does  not  come  within  any 

1  Com.  v.  Orrlw.iv,  12  Cush.  (Mass.)  270. 

2  1  Russ.  on  Crimes,  (5th  ed.)  958  ;  2  Greenl.  Ev.,  §  84  ;  Kirland  v. 
State,  43  Ind.  146  ;  s.  c.  2  Green's  Cr.  Law  Rep.  706  ;  Johnson  v. 
Tompkins,  1  Bald.  C.  Ct.  571 ;  People  v.  Moore,  50  Hun  (N.  Y.)  356. 

3  Regina  v.  Button,  8  C.  &  P.  660. 

4  Regina  v.  Hanson,  2  C.  &  K.  912  and  notes. 

5  Com.  v.  Stratton,  114  Mass.  303. 


198  CRIMINAL  LAW. 

definition  of  assault,  although  the  Language  of  some 
of  the  old  text-writers  is  broad  enough  to  cover  it. 
Mr.  Justice  Buller1  says,  "Every  imprisonment  in- 
cludes a  battery,  and  every  battery  an  assault,"  citing 
Coke  upon  Littleton,  253, —  where  it  is  merely  said 
that  imprisonmenl  is  a  "corporal]  dammage,  a  re- 
straint upon  personal  liberty,  a  kind  of  captivity, "  — 
obviously  no  authority  for  the  proposition  that  every 
imprisonment  includes  an  assault,  though  it  is  au- 
thority for  the  proposition  that  an  imprisonmenl  may 
be  a  cause  of  action.  It  is  probable  that  such  im-. 
prisonment  only  as  follows  unlawful  arrest  was  in 
the  mind  of  that  great  judge  and  common  lawyer.2 
And  in  one  case  at  least  in  this  country3  the  court 
has  gone  very  near  to  that  extent.  But  it  would  not 
be  safe  to  say  that  such  is  the  law.  There  ma\  be 
an  imprisonment  by  words  without  an  assault.4 

§  212.  Putting  in  Fear.  —  Although  the  threatened 
force  be  not  within  striking  distance,  yet  if  it  be 
part  of  an  act  or  series  of  acts  which,  if  consum- 
mated, will,  iu  the  apprehension  of  the  person 
threatened,  result  in  the  immediate  application  of 
force  to  his  person,  this  will  amount  to  an  assault, 
without  battery;  as  where  one  armed  with  a  weapon 
rushes  upon  another,  but  before  he  reaches  him  is 
intercepted   and   prevented   from   executing  his   pur- 

1   X.  P  22. 

-  See  note  to  Bridgeman's  edition  of  Boiler,  p.  22.  In  Emmett  v. 
Lyne,  l  B.  &  P  X.  R.  255,  the  proposition  is  said  to  be  absurd,  and 
the  fact  that  it  is  unsupported  bj  the  authority  of  Coke  or  Littleton 

: 

Smith  v.  State,  7  Humph.  (Tenn.)  4.'!. 
1  Bird  i>.  Jones,  7  Q.  B.  742  ;  Johnson  v.  Tompkins,  l  Bald.  C.  Ct 
:.7l  ;  Pike  v.  Hanson,  'J  X.  1L  491, 


ASSAULT.  199 

pose  of  striking ; *  or  rides  after  him,  upon  horse- 
back, and  compels  him  to  seek  shelter  to  escape  a 
battery ; 2  or  a  man  chases  a  woman  through  a  piece 
of  woods,  crying,  "  Stop ! "  until  she  arrives  at  a 
house,  when  he  turns  back,  and  gives  up  the  chase.3 
The  force  of  fear,  taking  effect,  supplies  the  actual 
violence.4 

Mere  words,  however  menacing,  it  seems  long  to 
have  been  universally  agreed,  do  not  amount  to  an 
assault.  Though  the  speaking  of  the  words  is  an 
act,  it  is  not  of  such  importance  as  to  constitute  an 
attempt  to  commit  violence.  It  is  not  "  violence 
begun  to  be  executed. " 5  But  words  accompanied 
by  acts  which  indicate  an  intent  to  commit  violence, 
and  threaten  application  of  force  to  the  assaulted 
party  unless  the  assailant  be  interrupted,  constitute 
an  assault.6 

§  213.  Menace,  but  no  Intent  to  commit  a  Battery.  — 
It  has  been  recently  held  that,  if  there  is  menace  of 
immediate  personal  injury  such  as  to  excite  appre- 
hension in  the  mind  of  a  reasonable  man,  although 
the  person  threatening  intended  not  to  injure,  as 
where  one  person,  within  shooting  distance,  points 
an  unloaded  gun  at  another  knowing  that  it  is  not 
loaded,  it  is  an  assault,7  adopting  the  following  defi- 

1  State  v.  Davis,  1  Ired.  (N.  C.)  125;  Stephens  v.  Myers,  4  C.  & 
P.  349. 

2  Mortin  v.  Shoppee,  3  C.  &  P.  373;  State  v.  Sims,  3  Strobh. 
(S.  C.)  137. 

3  State  v.  Neely,  74  X  C.  425. 

4  Com.  v.  White,  110  Mass.  407 ;  Balkum  v.  State,  40  Ala.  671. 

5  1  Hawk.  P.  C.  (8th  ed.)  110. 

6  People  v.  Yslas,  27  Cal.  630. 

7  Com.  v.  White,  110  Mass.  407. 


200  CRIMINAL   LAW. 

nit  ion  of  Mr.  Bishop: 1  "An  assault  is  any  unlawful 
physical  force,  partly  or  fully  put  in  motion,  creat- 
ing a  reasonable  apprehension  of  immediate  physical 
injury."  And  this  seems  to  be  the  doctrine  of  tin' 
Scotch  Law.2  Bui  do  well  considered  English  case 
has  gone  to  this  extent,  though  then-  is  a  dictum  by 
Mr.  Baron  Parke8  which  supports  the  doctrine,  while 
other  and  later  cases  are  to  the  contrary.4  Nor  has 
any  other  American  ruse  been  found  which  goes  so 
far.  On  the  contrary,  there  are  several  which  seem 
to  imply  that,  if  the  gun  be  not  loaded,  it  may  be 
shown  by  the  accused  in  defence.5  A  man  who 
menaces  another  with  corporal  injury,  with  intent  to 
excite  his  fears,  may  no  doubl  be  guilty  of  an  indict- 
able offence;6  hut  whether  the  offence  constitutes  an 
assault  must  be  considered  an  open  question.  An 
intent  to  commit  one  crime  cannot  make  a  party 
guilty  of  committing  another  which  he  did  not  in- 
tend, unless  the  unintended  one  be  actually  com- 
mitted. Nor  does  it  follow,  because  a  person  may 
be  justified  in  availing  himself  of  force  to  avoid  or 
ward  off  apprehended  bodily  harm,  that  bodily  harm 
is  intended.  Not  every  supposed  assault  is  an 
actual  one,  nor  does  it  seem  logical  or  just  that  the 

1  2  Cr.  Law,  §  23. 

-  Morrison's  Case,  l  Brown  (Justic.  Rep.)  .'594. 

»  Regina  v.  St.  George,  9  C.  &  I*.  483. 

4  Blake  v.  Barnard,  9  C.  &  P.  626  :  Regina  >■.  James,  1  C.  &  K.  580. 

B  Sec,  iii  addition  to  the  cases  very  fully  collected  by  Mr.  Bishop, 
2  Cr  Law.  §  32,  n.  I,  p.  20:  Burton  v.  State,  3  Tex.  App.  108  ; 
Tarver  v.  State,  43  Ala.  354;  Richels  v.  State,  I  Sneed  (Tenn.)  606. 
Jeo  Mr.  Green's  n<>to  to  <  !om.  v.  White,  2  Gre<  d's  C.  L,  R.  269,  in 
which  the  doctrine  of  the  principal  ra-<-  is  .  1» - n I< -< I ,  ami  the  cases  upon 
which  it  is  supposed  to  resl  carefully  examined. 

6  State  v.  Benedict,  11  Vt.  236. 


ASSAULT.  201 

misapprehension  of  one  can  fix  criminal  responsi- 
bility upon  another,  though  the  latter  cannot  be 
allowed  to  complain  that  he  has  suffered  the  conse- 
quences of  a  misapprehension  to  which  he  has  given 
rise.1 

§  214.  Self-defence.2  —  As  every  person  has  the 
right  to  protect  himself  from  injury,  he  may,  when 
assaulted,  use  against  his  assailant  such  reasonable 
force  in  degree  and  kind  as  may  be  necessary  and 
appropriate  for  his  protection.  But  if  he  go  beyond 
that  limit,  he  becomes  in  his  turn  guilty  of  assault.3 

There  seems  to  be  no  necessity  for  retreating  or 
endeavoring  to  escape  from  the  assailant  before  re- 
sorting to  any  means  of  self-defence  short  of  those 
which  threaten  the  assailant's  life.  Nor  where  one 
has  been  repeatedly  assaulted,  and  has  reason  to 
believe  that  he  will  be  again,  is  he  bound  to  seek  the 
protection  of  the  authorities.  He  may  resist  the 
attack,  and,  if  it  comes,  repel  force  with  force.4 

But  before  the  assaulted  party  will  have  the  right 
to  kill  his  assailant,  he  must  endeavor  to  avoid  the 
necessity,  if  it  can  be  done  with  safety.  If,  however, 
there  be  reasonable  apprehension  of  danger  so  immi- 
nent, or  of  such  a  character,  that  retreat  or  delay  may 
increase  it,  then  the  assaulted  party  is  justified  in 

1  McKay  v.  State.  44  Tex.  43,  a  case  in  which  the  point  is  elabo- 
rately considered  and  the  definition  of  Mr.  Bishop  disapproved ;  s.  c. 
1  Am.  Cr.  Rep.  46. 

2  Ante,  §  63  et  seq. 

3  Regiua  v.  Driscoll,  C.  &  M.  214  ;  Gallagher  v.  State,  3  Minn.  270; 
State  v.  Gibson,  10  Ired.  (N.  C.)  214  ;  Com.  v.  Ford,  5  Gray  (Mass.) 
475. 

4  Evers  v.  People,  6  T.  &  C.  (N.  Y.)  156  ;  Gallagher  v.  State,  3 
Miun.  270. 


202  CRIMINAL  LAW. 

entering  upon  his  defence  at  once,  and  anticipating 
the  danger.1 

Such  force  may  also  be  used  in  defence  of  tl 
whom  it  is  one's  right  or  duty,  from  relationship  or 
otherwise,  to  protect,  and  indeed  in  defence  of  anj 
one  unlawfully  assailed.2 

§  215.  Defence  of  Property.  —  So  force  may  be  us<  d 
in  defence  of  one's  house  or  his  property.  A  man's 
house  is  his  castle,  foi  defence  and  security  of  him- 
self and  his  family.  And  if  it  is  attacked,  even 
though  the  object  of  the  attack  be  to  assault  the 
owner,  he  may,  without  retreating,  meet  the  assail- 
ant at  the  threshold,  and  prevent  his  access  to  the 
house,  if  need  be,  even  by  taking  his  life.8  Bui 
here,  as  in  other  eases  of  self-defence,  if  the  intruder 
be  driven  off,  following  and  beating  him  while  on 
his  retreat  becomes  in  its  turn  an  assault.'  And  in 
defence  of  property  the  resistance  cannot  extend  to 
taking  the  life  of  the  intruder  where  there  is  a  mere 
forcible  trespass,  but  only,  if  at  all,  where  it  is  ne- 
cessary to  prevent  the  felonious  taking  or  destruction 
of  the  property.0 

But  though  a  man  will  be  justified  in  such  extreme 
measures  in  defence  of  his  property,  this  can  only 
be  to  prevenl  it  from  being  taken  away  from  him. 
He  cannot  resort  to  any  force  which  would  amount 
to  an  assaull  or  breach  of  the  peace  to  recapture  his 

1  Stair  v.  Bohan,  19  Kan.  28.     See  a!-  i       \  Homicide. 

-  1  Bish.  Cr.  Law,  $  877. 

:)  State  v.  Patterson,  4.j  Vt.  308;  Bohannon  v.  ('"in  .  B  Bnsh  (Ky.) 
481;  Pond  v.  People,  8  Mich.  150;  State  ».  .Martin,  :so  Wis  216 

1  State  '■.  Conally,  :i  I  Ireg.  69. 

5  Carrol]  -•.  State,  23  Ala.  28;  I  Easl  1'.  C.  402;  1  Bisfa  Cr  Law, 
§  875  ;  Male  v.  Patterson,  45  Yt.  308. 


MAYHEM.  203 

stolen  property,1  as  the  preservation  of  the  public 
peace  is  of  greater  importance  than  the  status  of  any 
man's  private  property. 

§  216.  Accidental  Injury,  —  If  a  person  doing  a  law- 
ful act  in  a  proper  manner,  without  intent  to  harm 
another,  sets  in  motion  a  force  which  by  accident 
becomes  hurtful,  this  is  no  assault.  Thus,  where 
one  throws  an  object  in  a  proper  direction,  and  by 
striking  some  other  object  it  is  made  to  glance,  or  is 
driven  by  the  wind  out  of  its  course,  so  that  it  strikes 
another,  or  if,  without  being  turned  from  its  course, 
it  hits  a  person  not  known  to  be  in  the  vicinity  when 
the  object  is  thrown,  the  act  is  in  no  sense  crimi- 
nal.2 So  one  is  not  guilty  of  a  criminal  assault 
when  the  horse  he  is  driving  runs  away  and  injures 
a  man.3 

MAYHEM. 

§  217.  Mayhem  is  defined  by  Blackstone  4  as  "the 
violently  depriving  another  of  the  use  of  such  of  his 
members  as  may  render  him  the  less  able,  in  fight- 
ing, either  to  defend  himself  or  to  annoy  his  adver- 
sary."  Amongst  these  members  were  included  a 
finger,  an  eye,  a  foretooth,  and  those  parts  which  are 
supposed  to  give  courage.  But  cutting  off  the  ear 
or  the  nose  is  not  mayhem  at  common  law,  since 
the  loss  of  these  tends  only  to  disfigure,  but  not  to 
weaken.5  The  injury  must  be  permanent  in  order  to 
constitute  the  offence.6     Under  the  statute,  however, 

1  Hendrix  v.  State,  50  Ala.  148  ;  3  Bl.  Com.  4 ;  ante,  §  168. 

2  Eex  v.  Gill,  1  Str.  190 ;  1  Buss,  on  Crimes,  (5th  ed.)  962. 

3  Dickenson  v.  State,  24  Tex.  App.  121. 

4  4  Com.  205. 

6  4  Bl.  Com.  205.     See  also  2  Bish.  Cr.  Law,  §  1001,  and  notes. 
«  State  v.  Briley,  8  Porter  (Ala.)  472. 


204  CRIMINAL   LAW. 

iii  Texas,  the  fact  that  the  injured  member,  having 
been  pul  back,  grew  again  in  its  proper  place,  was  no 
defence.1  The  offence  is  now  almost  universally,  in 
this  country,  defined  by  statute,  and  generally  treated 
as  an  aggravated  assault.  In  many  States  the  stat- 
utes cover  cases  not  embraced  by  the  common  law, 
as  the  biting  off  an  ear  or  the  Blitting  of  the  nose, 
if  the  injury  amounts  to  a  disfigurement.2 

Mayhem,  at  common  Law,  was  punishable  in  some 
cases  as  a  felony,  — an  eye  for  an  eye.  and  a  tooth 
for  a  tooth, —  and  in  others  as  a  misdemeanor.8  Bui 
if  the  offence  is  made  a  felony  in  this  country,  the 
punishment  is  defined  by  statute.  It  is  doubtless, 
generally,  a  misdemeanor,  unless  done  with  intent 
to  commit  a  felony.1 

CFnder  the  statute  in  New  York,  the  injury  must 
have  been  done  by  "premeditated  design"  and  "of 
purpose."  Hence,  if  done  as  the  resull  of  an  unex- 
pected encounter,  or  of  excitement  produced  by  the 
fear  oi  bodily  harm,  the  offence  is  not  committed.6 
So  under  the  statide  5  Henry  IV.  c.  5,  malice  pre- 
pense was  said  by  Lord  Coke  to  mean  "voluntarily 
and  of  set  purpose. " 6  Bui  in  North  Carolina,  where 
the  statute  prescribes  the  act  done  "on  purpose  and 
unlawfully,  but  without  malice  aforethought,"  it  lias 
been  held  that  the  intent  to  disfigure  is  prima  facie 
to  be  inferred  from  an  act  which  does  in  fad  disfig- 

i  Slattery  v.  State,  41  Texas,  <>19. 

2  State  v  Girkin,  I  Ired.  (N.  C.)  121  ;  State  v.  Ailoy,  3  Hcisk. 
(Tenn.)  8. 

8  4  Bl.  Com.  205;  Com.  v.  Newell,  7  Mass.  245. 

■  [bid.  j  Stephen's  Dig.  Cr.  Law.  c.  25  and  26. 

6  Godfrey  v.  People,  63  X.  V.  2i>7. 

6  Coke,  3  Inst.  62.    See  also  Godfrey  v.  People,  ubi  supra. 


HOMICIDE.  205 

ure,  and  it  is  not  necessary  to  prove  a  preconceived 
intention  to  disfigure. 1 

HOMICIDE. 

§  218.  Homicide  is  the  killing  of  a  human  being. 
It  may  be  lawful,  as  when  one  shoots  an  enemy  in 
war,  or  the  sheriff  executes  another  in  pursuance  of 
the  mandate  of  the  court,  or  kills  a  prisoner  charged 
with  felony  in  the  effort  to  prevent  his  escape,  and 
hence  called  justifiable  homicide,  in  contradistinc- 
tion to  excusable  homicide,  or  a  homicide  commit- 
ted in  protecting  one's  person  or  the  security  of  his 
house. 

Justifiable  Homicide.  —  In  addition  to  the  illustra- 
tions already  given,  it  may  be  said,  generally,  that 
wherever,  in  the  performance  of  a  legal  duty,  it  be- 
comes necessary  to  the  faithful  and  efficient  dis- 
charge of  that  duty  to  kill  an  assailant  or  fugitive 
from  justice,  or  a  riotous  or  mutinous  person,  or 
where  one  interposes  to  prevent  the  commission  of 
some  great  and  atrocious  crime,  amounting  gener- 
ally, though  not  necessarily,  to  felony,  and  it  be- 
comes necessary  to  kill  to  prevent  the  consummation 
of  the  threatened  crime,2  —  in  all  these  cases  the 
homicide  is  justified  on  the  ground  that  it  is  neces- 
sary, and  in  the  interest  of  the  safety  and  good  order 
of  society.  But  homicide  can  never  be  justifiable, 
except  when  it  is  strictly  lawful  and  necessary. 
The  soldier  who  shoots  his  adversary  must  strictly 
conform  to  the  laws  of  war ; 3   and  the  sheriff  who 

1  State  v.  Girkin,  1  Ired.  (N.  C.)  121.  See  also  State  v.  Simmons, 
3  Ala.  497. 

2  United  States  v.  Wiltberger,  3  Wash.  C.  C.  515. 
8  State  v.  Gut,  13  Minn.  341  ;  4  Bl.  Com.  198. 


20G  CRIMINAL    LAW. 

cxrcufis  :i  prisoner  must  follow  the  mode  prescribed 
by  his  warrant.1 

The  distinction  between  justifiable  and  excusable 
homicide  rested,  in  the  early  common  law,  upon  the 
fact  thai  thr  latter  was  punishable  by  the  forfeiture 
of  goods,  while  the  former  was  not  punishable  at  all.2 
It  long  since,  however,  became  very  shadowy,  and 
has  now  an  interest  rather  historical  than  practical, 

—  the  verdict  of  not  guilty  being  returned  whenever 
the  circumstances  under  which  the  homicide  takes 
place  constitute  either  a  justification  or  an  excuse.3 

§  21!'.  Human  Being.  Time.  Suicide.  —  In  order  to 
constitute  homicide,  the  killing  must  be  of  a  person 
in  being;  that  is,  born  and  alive.  If  the  killing  be 
of  a  child  still  unborn,  though  the  mother  may  be  in 
an  advanced  state  of  pregnancy,4  or  if  the  child  be 
born,  and  it  is  not  made  affirmatively  to  appear  that 
it  was  born  alive,  it  is  no  homicide.5  Death,  how- 
ever, consequent  on  exposure,  after  premature  birth 
alive,  unlawfully  procured,  is  criminal  homicide.6 

It  is  also  a  rule  of  the  common  law,  valid,  no 
doubt,  at  the  present  day,  that  the  death  must  hap- 
pen within  a  year  and  a  day  alter  the  alleged  crime; 
otherwise  it  cannot  be  said  —  such  was  the  reasoning 

—  to  be  consequent  upon  it."  In  the  computation  of 
the  time,  the  whole  day  on  which  the  hurt  was 
received  is  reckoned   the  first.8 

1  1  Hale  P.  C.  433. 

2  1  Hawk.  P.  C.  (8th  erl.)  70  et  Beq.  3  4  Bl.  Com.  186 

4  l  Russell  on  Crimea,  (5th  ed.)  645 ;  Evans  v.  People,  49  N.  T.  86. 
6  United  States  v  Hewson,  7  Law  Reporter  (Boston),  361. 
6  Regina  v.  West,  -2  <".  &  K.  784 

:  '  !oki  'a  Third  Inst.  p.  38  ;  State  v.  Shepherd,  8  Ired.  (N.  C.)  195  ; 
People  v.  Kelly,  6  Cal.  210. 

8  1  Russ.  ou  Crimes,  (5th  cd.)  G73. 


HOMICIDE.  207 

Deliberate  suicide  is  self-murder,  and,  though  not 
punishable,  one  who  advises,  and,  being  present,  aids 
and  abets  another  to  commit  suicide,  is  guilty  of 
murder.1  So,  also,  one  who  kills  another  at  his  re- 
quest is  as  guilty  of  murder  as  if  the  act  had  been 
done  merely  of  his  own  volition.2 

§  220.  Murder.  —  Of  unlawful  homicides,  murder 
is  the  most  criminal  in  degree,  and  consists  in  the 
unlawful  killing  of  a  human  being  with  malice  afore- 
thought; as  when  the  deed  is  effected  by  poison 
knowingly  administered,  or  by  lying  in  wait  for 
the  victim,  or  in  pursuance  of  threats  previously 
made,  and,  generally,  where  the  circumstances  indi- 
cate design,  preparation,  intent,  and  hence  previous 
consideration.3 

§  221.  Malice,  Express  and  Implied.  —  This  malice 
may  be  express,  as  where  antecedent  threats  of  ven- 
geance or  other  circumstances  show  directly  that  the 
criminal  purpose  was  really  entertained ;  or  implied^ 
as  where,  though  no  expressed  criminal  purpose  is 
proved  by  direct  evidence,  it  is  indirectly  but  neces- 
sarily inferred  from  facts  and  circumstances  which 
are  proved. 

Where  the  killing  can  only  be  accounted  for  on 
the  supposition  of  design  or  intent,  the  law  conclu- 
sively implies  malice ;  or,  in  other  words,  the  courts 
instruct  the  jury  that,  certain  facts  being  proved, 
malice  is  to  be  implied.  And  malice  is  implied  by 
the  law  when,  though   no  personal  enmity  may  be 

1  Rex  v.  Dyson,  Buss.  &  Ry.  523 ;  Com.  v.  Bowen,  13  Mass.  356. 

2  1  Hawk.  P.  C.  (8th  ed.)  78;  Blackburn  v.  State,  23  Ohio  St. 
146. 

8  4  Bl.  Com.  195 ;  Com.  v.  Webster,  5  Cush.  (Mass.)  295,  316. 


208  CRIMINAL   LAW. 

proved,  the  perpetrator  of  the  deed  acts  without 
provocation  or  apparent  cause,  or  in  a  deliberately 
careless  manner,  or  with  a  reckless  and  wicked  hos- 
tility to  everybody's  rights  in  general,  or  under  Buch 
circumstances  as  indicate  a  wicked,  depraved,  and 
malignant  spirit;1  and  so  where  a  deadly  weapon 
is  used.2 

And  the  better  opinion  is,  that  under  the  modern 
statutes  denning  murder  in  the  first  degree,  as  well 
as  at  common  law,  this  implied  malice  is  effectual 
to  constitute  murder  in  the  first  degree,  all  doubts 
as  to  guilt  of  the  higher  degree  being  resolved  in 
favor  of  the  prisoner,  and  of  the  lower  degree.8 

§  222.  Malice  Aforethought.  —  It  is  not  necessary 
that  the  design,  preparation,  or  intent  which  consti- 
tutes malice  aforethought  should  have  been  enter- 
tained for  any  considerable  period  of  time  prior  to 
the  killing.  It  is  enough  to  constitute  this  sort  of 
malice  that  a  conscious  purpose,  design,  or  intent  to 
do  the  act  should  have  been  completely  entertained, 
for  however  limited  a  period  prior  to  its  execution.4 
Yet  in  Pennsylvania,  where  deliberate  premeditation 
is  made  a  necessary  characteristic  of  murder  in  the 
first  degree,  it  seems  to  be  held  that  those  words 
imply  something  more  than  malice  aforethought.5 

1  State  v.  Smith,  2  Strob.  (S.  C.)  77  ;  4  Bl.  Com.  198;  2  Bish.  Cr. 
Law,  680  et  seq. 

2  State  v.  Musiek,  101  Mo.  2G0. 

:!  Wharton,  Homicide  (2d  ed.),  §§  660-664,  and  cases  there  cited. 

4  People  u.  Williams,  43  Cal.  .344;  Com.  v.  Webster,  5  Cosh.  (Ma 
295;    People   r.  Clark,  .3   Seld.  (N.  Y.)   385;    Shoemaker  r>.  State   12 
Ohio,  43. 

*  Junes  v.  Com  ,  75  Pa.  403.  See  atao  Atkinson  v.  State,  20  Texas, 
522. 


HOMICIDE.  209 

§  223.  Imputed  Malice.  —  The  malice  required  for 
murder  need  not  be  actual  malice  against  the  victim. 
One  who,  intending  to  kill  A.,  kills  B.,  is  guilty  of 
murder ; 1  as,  for  instance,  where  he  places  poison  in 
the  way  of  an  enemy,  and  a  friend  takes  it  and  dies.2 
So  one  who  has  a  murderous  intention,  not  however 
directed  against  individuals,  as  one  who  fires  into  a 
crowd  intending  to  kill,  is  guilty  of  murder.3  So 
one  who  is  engaged  in  any  felony  or  other  crime  of 
violence,4  or  resisting  a  lawful  arrest,5  where  he  com- 
mits homicide  even  accidentally,  is  guilty  of  murder. 
But  it  would  seem  that  this  rule  cannot  be  pressed 
too  far.  In  order  to  impute  malice  to  one  engaged 
in  felony,  it  seems  that  the  act  done  not  only  must 
be  done  in  the  course  of  a  felony  or  other  aggravated 
crime  of  violence,  but  must  be  in  itself  one  that 
might  be  reasonably  supposed  dangerous  to  life.6 

§  224.  Presumptive  Malice.  —  It  was  formerly  held 
that  every  homicide  is  to  be  presumed  to  be  of  malice 
aforethought,  unless  it  appears  from  the  circum- 
stances of  the  case,  or  from  facts  shown  by  the  de- 
fendant in  explanation,  that  such  malice  does  not 
exist.7  But  the  better  doctrine  now  is,  doubtless, 
in  accordance  with  the  dissenting  opinion  of  Mr. 
Justice  Wilde,  in  the  case  just  cited,  that  when  the 
facts  and  circumstances  attendant  upon  the  killing 

1  McGehee  v.  State,  62  Miss.  772. 

2  Saunders's  Case,  2  Plowd.  473 ;  Gore's  Case,  9  Co.  81  a. 

3  State  v.  Gilman,  69  Me.  163. 

4  Fost.  Cr.  Law,  258  ;  Errington's  Case,  2  Lewin  C.  C.  217. 

5  1  Rum  Cr.  732  et  seq. ;  Yong's  Case,  4  Co.  40  a. 

6  Regina  v.  Seme,  16  Cox  C.  C.  311. 

7  Com.  v.  York,  9  Met.  (Mass.)  93,  Mr.  Justice  Wilde  dissenting; 
Com.  v.  Webster,  5  Cush.  (Mass.)  295,  316. 

14 


210  CRIMINAL  LAW. 

are  equivocal,  ami  may  or  may  nut  be  malicious,  it  is 
for  the  government  to  show  that  they  are  malicious; 
otherwise,  the  defendant  is  entitled  to  the  must  fa- 
vorable construction  of  which  the  tacts  will  admit. 
If,  for  instance,  two  persons  are  in  a  room  together, 
and  one  is  seen  to  emerge  therefrom  holding  a  knife 
in  his  hand,  leaving  behind  him  the  other  dead,  and 
wounded  in  such  a  manner  that  it  is  certain  that  the 
death  must  have  been  caused  by  the  knife  in  the 
hand  of  the  person  who  is  seen  to  emerge,  yet,  as 
the  homicide  may  have  been  murder,  manslaughter, 
orin  self-defence,  it  is  for  the  governmenl  to  produce 
evidence  that  it  was  the  former,  before  it  will  be 
entitled  to  a  verdict  of  guilty  of  murder;  and  it 
cannot  rely  for  such  verdict  upon  the  mere  pre- 
sumption that,  the  killing  being  shown  without  ex- 
planation, it  was  malicious.1  The  law  does  not 
presume  the  worst  of  several  possible  solutions 
against  the  prisoner;  it  rather  presumes  that  that 
state  of  facts  is  the  true  one  which  would  he  most 
favorable  to  him.2 

§  225.  Degrees  of  Murder. — Formerly  murder,  the 
least  as  well  as  the  most  atrocious,  was  punished  by 
death.  Xow,  however,  in  many  of  the  States,  mur- 
der has  by  statute  been  made  a  crime  punishable 
with  greater  or  less  severity,  according  to  the  cir- 
cumstances of  atrocity  under  which  it  is  committed, 
—  deatli  being  inflicted  only  in  the  mosl   atrocious 

i  See  Bennett  S  Beard's  Leading  Cr.  Cas.,  Vol.  I.  p.  322 ;  Whart. 

II. .in.  (2.1  od.),  §§  664,669;  Stokea  n.  People,  53  N.  Y.  164  ;  State  ,-. 
Porter,  34  [owa,  131  :  People  v.  Woody,  45  Cal.  289 

-  United  States  ».  Mingo,  2  Curtis  C.  C.  1 ;  Read  v  Com.,  22  Gratt 
(Va.)  924. 


HOMICIDE.  211 

cases.  Hence  the  different  degrees  of  murder  of 
which  the  books  speak.  Manslaughter  has  also,  by 
the  statutes  of  some  of  the  States,  its  several  de- 
grees, founded  upon  the  same  principle  of  greater  or 
less  depravity,  indicated  by  the  attendant  circum- 
stances. These  several  statutes  are  held  not  to  have 
changed  the  form  of  pleading  at  common  law;  but 
the  jury  are  to  find  the  crime  as  of  the  degree  which 
the  facts  warrant,  the  court  instructing  them  that 
such  and  such  facts,  if  proved,  would  show  the  crime 
to  be  of  a  particular  degree.  Nor  have  those  statutes 
changed  the  rules  of  evidence.  Yet,  in  considering 
cases  decided  in  these  States,  it  is  worth  while  to 
consider  that  in  matters  of  definition  the  common 
law  of  murder  may  have  been  modified,  so  that,  in 
determining  what  is  murder  and  what  manslaughter 
at  common  law,  these  cases  are  not  always  safe 
guides.1 

§  226.  Manslaughter  is  any  unlawful  killing  with- 
out malice  aforethought;  as  when  one  strikes  his 
wife,  and  death  results  from  the  blow,  though  not 
intended,2  or  kills  another  in  a  fight  arising  upon  a 
sudden  quarrel,3  or  upon  mutual  agreement,4  or  in 
the  heat  of  passion,  or  upon  great  provocation.5 

Every  unlawful  homicide  is  either  murder  or  man- 
slaughter, and  whether  it  is  one  or  the  other  depends 

1  Davis  v.  State,  39  Md.  355;  Green  v.  Com.,  12  Allen  (Mass.) 
155.  In  Ohio  there  are  no  crimes  at  common  law.  Smith  v.  State, 
12  Ohio  St.  466. 

2  Com.  v.  McAfee,  108  Mass.  458. 

3  State  v.  Massage,  65  N.  C.  480.  *  Gann  v.  State,  30  Ga.  67. 

5  Maria  v.  State,  28  Texas,  698  ;  Holly  v.  State,  10  Humph.  (Tenn.) 
141  ;  Preston  v.  State,  25  Miss.  383  ;  Com.  v.  Webster,  5  Cush.  (Mass.) 
295  ;  State  v.  Murphy,  61  Me.  56. 


212  CRIMINAL   LAW. 

upon  the  presence  or  absence  of  the  ingredient  of 
malice. ' 

Manslaughter  may  be  voluntary  or  involuntary. 
Voluntary  manslaughter  is  when  the  act  is  com- 
mitted with  a  real  design  to  kill,  bu1  under  such 
circumstances  of  provocation  that  the  law,  in  its  ten- 
derness for  human  frailty,  regards  them  as  palliating 
the  criminality  of  the  a<  t  to  some  extent. 

Involuntary  manslaughter  is  when  one  causes  the 
death  of  another  by  some  unlawful  act,  but  without 
I  he  intent  ion  to  take  life.2 

£  227.  Mitigating  Circumstances. —  What  are  the  cir- 
cumstances of  provocation  which  reduce  this  crime 
from  murder  to  manslaughter  it  is  not  easy  to  define. 
It  seems  to  he  agreed  that  no  words,  however  oppro- 
brious, and  no  trespass  to  lands  or  goods,  however 
aggravating,  will  be  sufficient.  To  mitigate  a  mur- 
der to  manslaughter,  the  excited  and  angry  condi- 
tion of  the  person  committing  the  act  must,  proceed 

from  some  cause  which  would  naturally  and  instantly 
produce  in  the  minds  of  men,  as  ordinarily  consti- 
tuted, a  high  degree  of  exasperation.  Otherwise,  a 
high-tempered  mam  who  habitually  indulges  his 
passion,  would  be  entitled  to  the  same  consideration 
as  one  who  habitually  controls  Ins  passion.  The 
law  seeks  to  arrive  ;>)  such  a  result  as  will  lead  men 
to  cultivate  habits  of  restraint  rather  than  indul- 
gence of  their  passions.  Hence  the  question  ordi- 
narily is  not  so  much  whether  the  party  killing  is 
actually  under  the  influence  of  a  great   passion,  as 

1  Read  v.  Com.,  22  (.ran  (Va.)  924;  Com.  v.  Webster,  5  Cush. 
(Mass  )  295. 

-  Com.  '■   Webster,  5  Cush.  (Mass.)  295. 


HOMICIDE.  213 

whether  such  a  degree  of  passion  might  naturally  be 
expected  had  he  exercised  such  self-control  as  a  due 
regard  to  the  rights,  and  a  due  consideration  of  the 
infirmities,  of  others,  in  the  interest  of  public 
safety,  require.  There  must  also  be  a  reasonable 
proportion  between  the  mode  of  resentment  and  the 
provocation. 2 

§  228.  Provocation.  —  The  homicide,  moreover,  is 
not  entitled  to  this  reduction  in  the  degree  of  its 
criminality,  unless  it  be  done  under  the  influence  of 
the  provocation.  If  it  be  done  under  its  cloak,  it 
will  not  avail  to  excuse  to  any  extent.  If  it  can  be 
reasonably  collected  from  the  weapon  made  use  of, 
or  from  any  other  circumstances,  that  there  was  a 
deliberate  intent  to  kill,  or  to  do  some  great  bodily 
harm,  such  homicide  will  be  murder,  however  great 
may  have  been  the  provocation.2  Nor  docs  provoca- 
tion furnish  any  extenuation,  unless  it  produces  pas- 
sion.3 And  seeking  a  provocation  through  a  quarrel 
or  otherwise,  or  going  into  a  fight  dangerously  armed 
and  taking  one's  adversary  at  unfair  advantage,  is 
such  evidence  of  malice  as  to  deprive  the  guilty  party 
of  all  advantage  of  the  plea  of  provocation.4  Where 
two  parties,  as  in  the  case  of  a  duel,  enter  into  a 
conflict  deliberately,  and  death  ensues  to  either,  it 

1  Com.  v.  Webster,  5  Cush.  (Mass.)  295  ;  State  v.  Starr,  38  Mo.  270  ; 
Fralich  v.  People,  65  Barb.  (N.  Y.)  48 ;  Flanagan  v.  State,  46  Ala.  703  ; 
Preston  v.  State,  25  Miss.  383  ;  People  v.  Butler,  8  Cal.  435  ;  Nelson  « . 
State,  10  Humph.  (Tenn.)  518. 

2  1  Russell  on  Crimes,  423.  440  ;  State  v.  Cheatwood,  2  Hill  (S.  C.) 
459 ;  Felix  v.  State,  18  Ala.  720  ;  People  v.  Austin,  1  Parker  C.  C. 
(N.  Y.)  154. 

3  State  v.  Johnson,  1  Ired.  (N.  C.)  354. 

4  Price  v.  State,  36  Miss.  531 ;  State  v.  Hildreth,  9  Ired.  (N.  C.)  429. 


o|j.  CRIMINAL   LAW. 

is  murder  by  the  other;  while  the  same  result,  if 
the  conflict  be  sudden  and  in  hot  blood,  is  but 
manslaughter.1 

Upon  this  point,  also,  the  fact  that  the  injured 
party  is  greatly  the  inferior  of  his  assailant  -as  it' 
he  be  a  child,  or  woman,  or  a  man  physically  or 
mentally  enfeebled  —  is  an  important  element  in  de- 
termining how  much  is  to  be  deducted  from  the 
criminality  of  the  offence  od  the  score  of  provo- 
cat  ion.2 

Ami  however  great  may  have  been  the  pro 
tion,  if  sufficient  time  and  opportunity  have  trans- 
pired to  allow  the  aroused  passions  to  subside,  or 
the  heated  passions  to  cool,  death  afterwards  in- 
flicted is  murder,  whether  the  passions  have  subsided 
or  the  heated  blood  cooled  or  not  :  ami  it  is  a  ques- 
tion of  law  tor  the  court  to  say  whether  that  time 
has  elapsed.3 

§229.  Provocation.  Unlawful  Arrest.  —  But  there 
are  cases  where  the  provocation  does  not  produce 
that  heated  passion  of  which  we  have  just  been 
speaking,  and  where,  although  the  homicide  be  de- 
liberately  committed,  and  is  not  shown  to  he  neces- 
sary, the  act  is  held  by  the  law  to  be  manslaughter, 
and  not  murder.  Thus  it  has  been  held,  in  some 
s,  that,  where  an  unlawful  arrest  is  attempted 
or  made,  the  party  pursued  or  arrested  may  kill  his 
assailant,  either  in  resistance  to  the  arresl  or  in  the 
attempt   to  escape,   although  the  act   be  done  under 

1  United  States  v.  Mingo,  2  Curtis  C.  C.  1  ;  State  v.  Underwood,  57 
Mo,  i" 

-  Com.  v.  Mosler,  i  Barr  (Pa.)  264. 

:1  State  v.  McCanta,  l  Speer  (S  C.)  384;  Rex  v.  Hayward,  6  C.&  P 
r.: :  Stati  '•-  Moore,  69  N   C  267. 


HOMICIDE.  215 

such  circumstances  as  would  equal  or  surpass,  in 
point  of  atrocity  and  moral  turpitude,  many  cases 
recognized  as  murder.1 

This  doctrine,  however,  does  not  meet  with  uni- 
versal approval,  and  it  is  held  in  other  cases  that 
the  mere  fact  that  an  attempted  arrest  is  unlawful 
does  not  necessarily  reduce  the  killing  of  the  officer 
to  manslaughter.  In  this  case,  the  assailed  party 
may  use  such  reasonable  force,  and  only  such,  in 
proportion  to  the  injury  threatened,  as  is  necessary 
to  effect  his  escape.  This,  however,  does  not  war- 
rant him  in  the  use  of  a  deadly  weapon,  if  he  has  no 
reason  to  apprehend  a  greater  injury  than  a  mere 
unlawful  arrest.2  And  probably  the  killing  in  such 
case,  with  express  malice,  would  be  held  to  be  mur- 
der.3 So,  in  defence  of  one's  own  house,  or  his  cas- 
tle, the  law  will  not  justify  a  killing  of  the  assailant, 
unless  the  assault  be  of  such  a  nature  as  to  threaten 
death  or  great  bodily  harm  to  the  inmate.  A  mere 
threatened  injury  to  the  bouse,  which  does  not  also 
threaten  the  personal  safety  of  the  inmates,  does  not 
make  necessary,  and  therefore  does  not  justify,  the 
killing  of  the  assailant  to  prevent  the  possible  in- 
jury. A  mere  trespass  upon  the  property,  without  a 
felonious  purpose,  cannot  be  repelled  by  taking  the 
life  of  the  assailant.4 

§  230.  The  Death  must  be  the  Direct  Result  of  the 
Unlawful  Act.  —  It  was  formerly  held  that  if  a  wit- 

i  Com.  v.  Carey,  12  Cush.  (Mass.)  246;  Rafferty  v.  People,  69  111. 
Ill  ;  Rex  v.  Thompson,  1  Moo.  C.  C.  80. 

2  Galvin  v.  State,  6  Cold.  (Tenn.)  283. 

8  Roberts  v.  State,  14  Mo.  1.38. 

4  State  u.  Patterson,  45  Vt.  308.  See  also  Carroll  v.  State,  23  Ala, 
28  ;  1  Russell  on  Crimes,  447,  502  ;  post,  §  235. 


216  CRIMINAL   LAW. 

ness  by  false  testimony,  with  the  express  purpose  of 
taking  life,  procure  the  conviction  and  execution  of 
a  prisoner,  this  would  be  murder  by  the  false  wit- 
ness.1 But,  aside  from  the  fact  that  the  direcl  con- 
nection between  the  testimony  and  the  execution 
could  in  few  it'  any  cases  be  shown  with  thai  cer- 
tainty of  proof  required  in  criminal  cases,  the  perils 
of  such  a  rule  would  tend  to  deter  honest  witnesses 
from  testifying  to  what  they  believe  to  be  true.  Tin- 
injury  to  society,  to  say  nothing  of  the  injustice  of 
such  a  rule,  is  so  out  of  proportion  to  any  possible 
advantage,  that  modern  jurisprudence  seems  to  have 
discarded  it. 

So.  though  one  who  owes  a  personal  public  duty 
may  incur  criminal  responsibility  by  neglecting  it. 
yet  where  road  commissioners,  whose  duty  ii  was 
to  keep  a  road  in  repair,  with  power  to  contract, 
neglected  to  contract,  and  suffered  the  road  to  be- 
come «>ut  of  repair,  it  was  held  that,  when  injury 
resulted  from  the  want  of  repair,  neglect  to  contrad 
was  not  the  cause  of  the  injury,  in  such  a  sense  as  to 
be  imputable  to  their  neglect.2 

Where  dentli  follows  a  wound  adequate  to  produce 
it,  the  wound  will  he  presumed  to  he  the  cause,  un- 
less it  he  shown  that  the  death  was  solely  the  result 
of  some  other  cause,  and  not  of  the  wound. ;!  The 
wound  being  an  adequate,  primary,  or  contributory 
cause  of  the  death,  the  intervention  of  another  cause, 
preventing    possible    recovery   or    aggravating    the 

i  Rex  v.  McDaniel,  Leach  C.  0.  n. 
.   2  Regina  v.  Pocock,  17  Q.  B.  34. 

i  Parsons  v.  State,  21  Via.  300;  ''"in-  v.  Hackett,  -'  Allen  (Muss.) 
136;  Crum  v.  State,  l  So.  Rep.  l  ;  b.  <•.  64  Miss.  1. 


HOMICIDE.  217 

wound,  will  not  relieve  the  defendant.  If  death  be 
caused  by  a  dangerous  wound,  or  from  a  disease  pro- 
duced by  the  wound,  gross  ignorance  or  carelessness 
of  the  deceased  and  his  attendants  in  its  treatment 
dues  not  relieve  the  party  who  inflicted  the  wound 
from  responsibility.1  Death  from  a  cause  indepen- 
dent of  the  wound  will.2  But  it  will  be  no  excuse  to 
show  that,  if  proper  treatment  had  been  had,  the  death 
would  not  have  ensued.3  Mortal  illness,  either  from 
a  prior  wound  or  other  cause,  is  no  excuse  for  one 
who  produces  death  by  another  independent  wound 
or  other  source,4  though  it  has  been  said  that,  if 
death  is  the  result  of  prior  fatal  disease,  hastened  by 
a  wound,  the  person  inflicting  the  wound  is  not  re- 
sponsible for  the  death.5  It  is  also  said  that  it  is 
not  murder  to  work  on  the  imagination  so  that  death 
ensues,  or  to  excite  the  feelings  so  as  to  produce  a 
fatal  malady.6  But  it  is  apprehended  that  if  the 
death  be  traceable  to  the  acts  done  as  the  direct  and 
primary  cause,  and  if  it  can  be  shown  that  the  acts 
done  were  don.'  for  the  purpose  of  accomplishing  the 
result,  it  would  be  murder.  The  question  must 
always  be  whether  the  means  were  designedly,  or,  in 
the  sense  of  the  law,  maliciously  and  successfully 
used  to  produce  the  result.  If  they  were,  then  the 
guilt  of  murder  is  incurred ;  otherwise,  life  might  be 

1  Bowles  v.  State,  58  Ala.  335 ;  Kee  v.  State,  28  Ark.  155. 

2  Com.  v.  Costley,  118  Mass.  1 ;  State  v.  Scates,  5  Jones  (N.  C.)  420; 
Com.  v.  Hackett,  2  Allen  (Mass.)  136. 

»  1  Hale  P.  C.  428. 

4  People  v.  Ah  Fat,  48  Cal.  61 ;   State  v.  O'Brien,  46  N.  W.  Rep 
752  ;  s.  c.  81  Iowa,  88. 

5  Livingston  v.  Com.,  14  Gratt.  (Va.)  592. 

6  1  Hale  P.  C.  429. 


218  CRIMINAL   LAW. 

deliberately  taken  by  some  means,  with  impunity. 
To  frighten  one  to  death  deliberately  is  as  much 
murder  as  to  choke  or  starve  him.1  The  difficulty 
of  proof  that  death  results  from  a  particular  cause 
constitutes  sufficieni  reason  for  caution;  but  if  the 
truth  be  clear,  the  law  should  nol  fail  to  attach  the 
penalty.2 

So  where  one  by  threats  or  show  of  force  compels 
another,  acting  reasonably,  to  leap  into  a  river  or 
out  of  a  window  in  the  attempt  to  escape,  the  assail- 
ant  is  criminally  chargeable  with  the  consequent 
and  where  a  husband  by  threats  or  force  causes  his 
wile,  in  reasonable  fear  of  violence,  to  leave  the 
house,  and,  being  unable  to  secure  shelter,  she  is 
frozen  to  death,  as  mighl  have  been  foreseen,  the 
husband  is  guilty  of  homicide.4  An  indictmenl 
charging  that  the  prisoner  caused  the  death  by  some 
means  unknown  to  the  grand  jury,  and  therefore  un- 
described,  is  sufficieni  upon  which  to  find  a  verdict 
of  guilty  of  murder,  if  the  case  will  not  admit  of 
greater  certainty  in  statin--  the  means  of  causing  the 
death.5 

Though  it  «as  formerly  doubted  by  some  distin- 
guished judges,  it  seems  now  to  he  settled  that  the 
mere  omission  to  do  a  positive  duty,  whereby  one  is 
suffered  to  starve  or  freeze,  or  to  suffocate  or  other- 
wise perish,  is  manslaughter,   if   merely  heedlessly 

1  See  2  Bish.  Cr.  Law,  §£  642,  643,  and  note  2  to  §  64S  :  Regina  ■ 
Towers,  12  Cox  C.  C.  530. 

-  Bat  Bee  Whart.  Horn.,  §§  368-372,  and  n 

;  Regina  i>.  Pitts,  Car.  &  M.  284;  Regina  v.  Balliday,  61  L.  T. 
Rep.  701. 

4  Hendrickson  i>.  Com.,  i-">  Ky.  281. 

6  Com.  v.  Webster,  5  Cash.  (Mass.)  295. 


HOMICIDE.  219 

done ;  while  it  is  murder,   if  the    omission  is  with 
intent  to  bring  about  the  fatal  result. 1 

§  231.  Unlawfulness.  —  The  unlawfulness  which  is 
a  necessary  ingredient  in  the  crime  of  murder  or 
manslaughter  may  arise  out  of  the  mode  of  doing  a 
lawful  act.  Thus,  if  one  is  engaged  in  the  repair  of 
a  building  situated  in  a  field  away  from  any  street, 
and  where  there  is  no  reason  to  suppose  people  may 
be  passing,  and  being  upon  the  roof,  and  in  igno- 
rance of  the  fact  that  any  person  is  below,  throws 
down  a  brick  or  piece  of  timber,  whereby  one  not 
known  or  supposed  to  be  there  is  killed,  the  act  be- 
ing in  itself  lawful  and  unattended  with  any  degree 
of  carelessness,  he  is  guilty  of  no  offence.  The 
death  is  the  result  of  accident  or  misadventure.  If 
we  suppose  the  circumstances  to  be  somewhat 
changed,  and  the  building  to  be  situated  upon  the 
highway  in  a  country  town,  where  passengers  are 
infrequent,  and  the  same  act  is  done  with  the  same 
result,  the  precaution,  however,  being  taken  of  first 
looking  to  see  if  any  one  is  passing,  and  calling  out 
to  give  warning  of  danger,  the  killing  would  still  be 
by  misadventure,  and  free  from  guilt,  because  the 
act  done  is  lawful  and  with  due  care.  Yet  were  the 
same  act  to  be  done  in  a  populous  town,  where  people 
are  known  to  be  continually  passing,  even  though 
loud  warning  were  to  be  given,  and  death  should 
result,  it  would  be  manslaughter;  and  if  no  warn-, 
ing  at  all  were  given,  it  would  be  murder,  as  evin- 
cing a  degree  of  recklessness  amounting  to  general 
malice  towards  all.2     So  when  a  parent  is  moder- 

1  Regina  v.  Conde,  10  Cox  C.  C.  547. 

2  4  Bl.  Cora.  192. 


2 20  CRIMINAL  LAW. 

ately  correcting  his  child,  and  happens  to  occasion 
his  death,  it  is  only  misadventure;  for  the  ad  of 
correctioo  is  lawful.  I iut  if  he  exceeds  the  bounds 
of  moderation  either  in  the  manner,  the  instrument 
used,  the  quantity  of  punishment,  or  in  any  other 
way.  and  death  ensues,  it  is  manslaughter  al  1 
and,  under  circumstances  of  special  atrocity,  mighl 
be  murder.1  The  same  act,  therefore,  which  under 
certain  circumstances  would  be  lawful  and  proper, 
ami  involve  no  guiH  even  if  death  should  ensue, 
mighl  under  other  circumstances  involve  the  guilt 
of  manslaughter,   or  even   murder.2 

The  condition  of  the  person  ill  treated,  as  where, 
being  in  a  debilitated  condition,  lie  is  compelled  to 
render  services  for  which  be  is  for  the  time  being 
incompetent,  is  often  a  controlling  circumstance  in 
determining  the  guilt   of  the  offender.3 

So,  though  one  is  not  in  general  criminally  Liable 
for  the  death  of  a  servant  by  reason  of  the  insuffi- 
ciency of  food  provided,  yet  if  the  servant  be  of  such 
tond(  r  age,  or  of  such  bodily  or  mental  weakness,  as 
to  be  unable  to  lake  care  of  himself,  or  is  unable  to 
withdraw  from  his  master's  dominion,  the  master 
may   be  criminally   responsible.4 

§  232.  Negligence.  Carelessness.  —  The  poinl  at 
which,  in  the  performance  of  a  lawful  act,  one 
passes  over  into  the  region  of  unlaw  fulness  is  so  un- 
certain,  the    line  of   demarcation  is  so   shadowy,   that 

1  -l  111   Com.  182. 

-  State  ».  Vance,  17  [owa,  188;  Ann  v  State,  n  Humph.  (Tenn.) 
159;  ('-in   v   F/ork,9  Met.  (Mass.)  93;   State/-.  Harris.*'.:;  \   c  l. 

s  United  States  v.  Freeman,  i  Mason  C.C.  505  :  ( '"in.  <•.  F«>x,  7  Gray 
(Mass 

1   Begins  v.  Smith,  li)  Cox  C.C.  82. 


HOMICIDE.  221 

it  has  been,  and  from  the  very  nature  of  the  case 
must  continue  to  be,  a  most  prolific  source  of  legal 
controversy.  It  is  often  said  that  the  negligence 
or  carelessness  must  be  so  gross  as  to  imply  a  crimi- 
nal intent;  but  the  question  still  is  when  it  reaches 
that  point,  and  no  rule  by  which  to  test  it  has  been 
or  can  be  given.  Each  particular  case  must  be  de- 
termined upon  its  particular  circumstances;  and 
precedents,  though  multitudinous,  are  so  generally 
distinguishable  by  some  special  circumstance,  that 
in  a  given  case  they  seldom  afford  any  decisive  cri- 
terion, though  in  many  instances  they  may  afford 
substantial  aid.1  Self-defence  is  lawful,  but,  if  car- 
ried beyond  the  point  of  protection,  it  becomes  in  its 
turn  an  assault,  unlawful  and  criminal.  If  a  man 
has  a  dangerous  bull  and  does  not  tie  him  up,  but 
leaves  him  at  liberty,  according  to  some  opinions, 
says  Hawkins,  he  is  guilty  of  murder,2  but  certainly 
of  a  very  gross  misdemeanor,  if  a  man  is  gored  to 
death  by  the  bull.3  On  the  other  hand,  says  Mr. 
Justice  Willes,  if  the  bull  be  put  by  the  owner  into 
a  field  where  there  is  no  footpath,  and  some  one  else 
let  the  bull  out,  and  death  should  ensue,  the  owner 
would  not  be  responsible.  Yet,  doubtless,  guilt  or 
innocence,  and  the  degree  of  guilt,  would  depend 
upon  what,  under  all  the  circumstances,  the  owner 
had  reason  to  believe  might  be  the  result  of  his  act, 
wdiether  or  not  it  would  be  inappreciably,  apprecia- 
bly, or  in  a  higher  degree  hazardous  to  the  lives  of 
others.     And  this  again  would  depend  upon  a  variety 

1  See  Regina  v.  Shepherd.  L.  &  C.  147. 

-  1  P.  C.  (8th  ed.),  92. 

8  Regina  v.  Spencer,  10  Cox  C.  C.  525. 


CRIMINAL   LAW 


of  circumstances;  —  as  the  degree  of  viciousness  of 
the  bull;  the  time,  whether  day  or  night,  when  li<' 
might   be  put   in  the  field;   the  probability  that   he 

mighi  be  let  nut,  or  thai  sonic  one  would  pas-s 
through  ilir  field;  the  size  of  the  field;  its  nearness 
to  or  remoteness  from  a  populous  neighborhood;  and 
many  others  which  mighl  lie  suggested,  hut  which 
cannot  lie  foreseen  or  properly  estimated  except  in 
their  relation  to  other  concomitant  circumstances.1 

Carelessness  in  a  physician,  whether  licensed  or 
unlicensed,  may  he  criminal,  it'  it  he  so  gross  and 
reckless  as  amounts  to  a  culpable  wrong,  and  shows 
an  evil  mind;2  but  it  he  made  a  mistake  merely,  it 
is   not   criminal.'5 

And  it  seems  that  gross  ignorance  ma\  lie  crimi- 
nal;4 and  that,  though  the  intent  lie  good,  one  who 
is  not  a  regularly  educated  physician  has  no  righl  to 
hazard  medicine  of  a  dangerous  character  unless  it  lie 
necessary.5  Bui  this,  doubtless,  would  depend  upon 
the  intent,  degree  of  intelligence,  and  other  circum- 
stances. Reckless  disregard  of  consequences  would 
be  criminal  in  a  regularly  educated  physician,  while 
the  hest  efforts  of  a  pretender,  made  in  good  faith 
and  in  an  emergency,  would  he  entirely  free  from 
fault.6     And  if  a  man  voluntarily  undertakes  to  per- 


i  See  for  casea  illustrative  upon  this  point  the  valuable  una"  elabo- 
rate note  of  Judge  Bennett  to  Rex  r.  Hull,  l  Leading  <  !r.  <  'as.  50. 

-  Regina  v.  Spencer,  10  Cox  0.  C.  525;  Rex  v.  Van  Butchell,  8  C 
&  P.  629;  Rice  v.  State,  8  Mo.  561. 

"■  Regina  v.  Chamberlain,  10  Cox  C.  C.  486;  State  v.  ETardister, 
38  Ark    605. 

*  Rex  v.  Spiller,  5  C.  &  P.  333. 

6  Simpson's  <  !ase,  l  Lewin,  1 72. 

6  Com.  r.  Thompson,  6  Mass.  1.34  ;    1  Hawk.  P.  C.  (8th  ed.),  104. 


HOMICIDE.  223 

form  the  duties  of  a  position  to  which  he  is  unsuited 
by  his  ignorance,  he  cannot  avail  himself  of  the  plea 
of  ignorance  as  an  excuse.  It  was  so  held  in  the 
case  of  an  engineer  of  a  steamboat.1 

§  233.  Neglect  of  Duty.  —  The  refusal  or  omission 
to  act,  when  legal  duty  requires,  may  be  as  criminal 
as  an  act  positively  committed.  Thus,  where  it  was 
the  duty  of  a  miner  to  cause  a  mine  to  be  ventilated, 
and  he  neglected  to  do  it,  and  as  a  consequence  the 
fire-damp  exploded,  causing  the  death  of  several  per- 
sons, this  was  held  criminal,2  and  it  would  be  mur- 
der if  the  result  was  intended.3  So  an  engineer,  by 
whose  omission  of  duty  an  explosion  takes  place4 
or  a  railway  train  runs  off  the  track,5  or  any  person 
bound  to  protect,  succor,  or  support  who  neglects  his 
duty,  whereby  death  ensues,  is  criminally  liable.6 

§234.  Self-defence.  Necessity.  —  The  limitations  to 
the  exercise  of  the  right  of  self-defence  have  already 
been  stated  under  the  title  of  Assault.  To  what  has 
there  been  said  it  should  be  here  added  that  it  was 
the  ancient,  and  by  the  weight  of  authority  it  is  the 
modern  doctrine,  that  before  the  assaulted  party  will 
be  justified  in  availing  himself  of  such  means  of  self- 
defence  as  menace  the  life  of  his  assailant,  he  must 
retreat,  except  perhaps  in  defence  of  one's  dwelling- 

1  United  States  v.  Taylor,  5  McLean  C.  C.  242. 

2  Regina  v.  Haines,  2  C.  &  K.  368. 

3  Regina  v.  Conde,  10  Cox.  C.  C.  547 

4  United  States  v.  Taylor,  5  McLean  C.  C.  242. 
6  Regina  v.  Benge,  4  F.  &  F  504. 

6  State  v.  Hoit,  23  N.  H.  355 ,  Regina  v.  Mabbett,  5  Cox  C.  C.  339 ; 
State  v.  Shelledy,  8  Iowa,  477  ,  State  v.  O'Brien,  32  N.  J.  169.  See 
also  Judge  Bennett's  note  to  Regina  v.  Lowe,  in  1  Leading  Cr.  Cas. 
60,  where  the  cases  illustrative  of  this  point  are  very  fully  collected 
and  stated. 


224  CRIMINAL   LAW. 

house,1  if  it  can  be  done  with  safety.  FTe  must  not 
avail  himself  of  the  right  to  kill  his  assailant,  if  he 
can  escape  the  extreme  necessity  with  safety  to 
himself.  The  poinl  of  honor,  thai  retreating  shows 
cowardice,  is  of  less  public  concern  than  would  be 
the  extension  of  the  right  to  take  the  life  of  an- 
other beyond  the  limit  of  clear  necessity.2  Perhaps 
the  tendency  of  modern  decisions  is  toward  less 
strictness  in  requiring  the  assailed  party  to  retreat, 
and  to  hold  that  a  man  who  entirely  without  fault 
is  feloniously  assaulted  may  kill  his  assailant,  with- 
out first  attempting  to  avoid  the  necessity  by  retreat- 
ing, it  being  possible  to  retreat  with  safety.3 

But  the  necessity  which  excuses  homicide  in  self- 
defence  is  not  a  justification  of  the  party  who  seeks 
and  brings  on  the  quarrel  out  of  which  the  necessity 
arises.4  He  cannot  excuse  himself  by  a  necessity 
which  he  has  himself  created.  Nor  can  he  We  justi- 
fied or  excused  for  a  homicide  done  upon  the  plea  of 
necessity,  if  the  necessity  arises  from  his  own  fault.5 

§235.  Self-defence.  Proper  Mode.  —  And  the  defence 
must  he  not  only  necessary,  but  also  by  appropriate 
means,  -    that   is  to  say,    in  order  to  excuse  a  homi- 

1  See  post,  §  2.35. 

-  1  Hal.-  I'.  C.  481  ;  Stoffer  v.  State,  15  <>l,i,,  St  17:  People  v. 
Cole,  4  I'arkor  ( \  ('  (N.  V.)  35;  Coffman  v  Com..  10  Bush  (Ky.) 
495;  State  v.  Ferguson,  9  Nev.  106 ;  State  v.  Hoover,  I  D  &  B.  (N.C  ) 
365;  Vaiden  t>.  Com.,  \-i  Gratt.  (Va.)  717:  United  Slates  v  Mingo, 
2  Curtis  C.  Ct.  (U.  S.)  l  :  Whart.  Horn.,  §  485  et  seq. 

3  Runyan  v  Mate,  :,7  Iml.  80;  Krwin  v  State,  29  Ohio  St.  186. 

i  State  o.  Under* I,  57  Mo.   4<>,   State  v.  Smith,  10  Nev.  106; 

Vaiden  >■  Com.,  12  Gratt.  (Va.)  717;  State  v.  Neeley,  20  l^wa,  108; 
State  v.  Bill,  4  D.  &  B.  (N.  C.)  491. 

•'  People  >■  Lamh,  17  Cal.  323;  Cox  v.  State,  04  Ga  374  ;  1  Hawk. 
P.  C.  (8th  ed.),  79. 


HOMICIDE.  225 

cide  as  done  in  self-defence,  it  must  be  made  to  ap- 
pear that  the  taking  of  the  life  of  the  assailant  in  the 
mode  adopted  appeared,  upon  reasonable  grounds, 
to  the  person  taking,  and  without  negligence  on  his 
part,  necessary  to  save  himself  from  immediate 
slaughter  or  from  great  bodily  harm,  —  the  actual 
existence  of  the  danger  being  immaterial,  if  such 
were  the  appearances  to  him.1 

In  defence  of  property  merely  as  property,  homi- 
cide is  not  excusable.  But  where  a  man's  house,  in 
so  far  as  it  is  his  asylum  or  his  property,  is  as- 
sailed, and  in  such  a  manner  that  his  personal 
security  is  threatened,  or  that  of  those  whom  he  has 
the  right  to  protect,  and  the  assault  may  be  said 
to  be  in  some  sense  an  assault  upon  him,  and  to 
threaten  his  life,  or  to  do  him,  or  those  he  has  the 
right  to  protect,  some  great  bodily  harm,  it  will  be 
held  excusable.  But  the  excuse  rests  upon  the  fact 
that  personal  injury  is  threatened.  The  law  does 
not  allow  human  life  to  be  taken  except  upon  neces- 
sity. You  may  kill  to  save  life  or  limb;  to  prevent 
a  great  and  atrocious  crime, —  a  felony  open  and  for- 
cible ;  and  in  the  discharge  of  a  legal  public  duty. 
But  one  man  cannot  be  excused  for  intentionally 

1  United  States  v.  Mingo,  2  Curtis  C.  C.  1 ;  People  v.  Lombard, 
17  Cal.  316;  Stewart  v.  State,  1  Ohio  St.  66;  State  v.  Sloane,  47 
Mo.  604;  State  v.  Harris,  59  Mo.  550;  Coffman  v.  Com.,  10  Bush 
(Ky.)  405,  Yates  v.  People,  32  N.  Y.  509,  Com.  v.  Drum,  58  Pa.  9; 
State  v.  Chopin,  10  La.  Ann.  458;  Munden  v.  State,  37  Texas,  353 ; 
Hurd  v.  People,  25  Mich.  405;  Pistorius  v.  Com.,  84  Pa.  158;  Dar- 
ling v.  Williams,  35  Ohio  St.  58.  This  we  think  to  be  the  law,  by 
the  weight  of  authority.  But  there  are  cases  to  the  contrary.  The 
cases  are  collected  and  thoroughly  discussed  in  Wharton,  Homicide, 
§  493  et  seq. 

15 


226  CRIMINAL  LAW. 

killing  another  for  a  mere  trespass  upon  his 
property. l 

It  is  said  in  some  cases,  that,  if  a  man  be  assaulted 
in  his  dwelling-house,  he  is  nol  bound  to  retreal  in 
order  to  avoid  the  necessity  of  killing  his  assailant, 
and  that  an  assault  upon  one  in  his  dwelling-house 
is  thus  distinguished  from  an  assault  upon  him  else- 
where.2 This  assault  in  one's  dwelling-house  maj 
be  in  some  sense  an  assault  upon  the  person  actually 
in  charge.3 

§236.  Struggle  for  Life.  —  Blackstone4  approves 
the  case,  put  by  Lord  Bacon,  of  two  persons  being  at 
sea  upon  a  plank  which  cannot  save  both,  and  one 
thrusting  the  other  off,  as  a  case  of  excusable  homi- 
cide. But  it  is  difficult  to  sec  where  one  gets  the 
right  to  thrust  the  other  off.  The  right  of  self- 
defence  arises  out  of  an  unlawful  attack  made  on 
one's  persona]  security,  not  out  of  accidental  circum- 
stances, which,  whether  threatening  or  not  to  the 
life  of  one  or  more  persons,  are  in  no  way  attributa- 
ble to  the  fault,  or  even  the  agency,  of  either.  Two 
men  may,  doubtless,  under  such  circumstances  strug- 
gle for  the  possession  of  the  plank  until  one  is  ex- 
hausted; hut  neither  can  have  the  righl  to  shoot  the 
other  to  make  him  let  go,  because  no  righl  of  him 
who  shoots  is  invaded. 

§  237.  Accident.  —  Homicide  is  also  excusable 
where  it  happens   unexpectedly,  without   intention. 

1  State  v  Patterson,  45  Vt  308;  State  v.  Vance,  17  [owa,  188; 
Stater.  Underwood,  57  Mo.  40 ;  I  Bish.  Cr.  Law,  §  857,  and  cases  there 
cited;  ante,§  229;  post,  §  239;  Whart,  Horn., §41  I  el  Beq 

2  Pond  '•  People,  8  Mien  150;  State  v  Martin,  30  Wis.  216; 
Bohannon  V.  Com.,  B  Bush  (Ky.)  481. 

8  State  v  Patterson,  ubi  supra.  4  4  Bl  Com.  186. 


HOMICIDE.  227 

and  by  accident,  or,  as  the  old  law  has  it,  by  mis- 
adventure in  the  performance  of  a  lawful  act  in  a 
proper  manner;  as  where  one  is  at  work  with  a 
hatchet  and  its  head  flies  off  and  kills  a  bystander;1 
so  if  a  physician,  in  good  faith,  prescribes  a  certain 
remedy,  which,  contrary  to  expectation  and  intent, 
kills,  instead  of  curing.2  But  if  the  lawful  act  be 
performed  in  so  improper  a  manner  as  to  amount  to 
culpable  carelessness,  then  the  homicide  becomes 
manslaughter.3 

§  238.  Accident  in  the  Course  of  a  Game.  —  Where 
death  ensues  from  accident  in  the  course  of  a  law- 
ful sport  or  recreation,  it  is  excusable  homicide.4 
But  this  excuse  will  not  avail  one  who  is  playing 
a  hazardous  game,  in  which  the  danger  of  injury  is 
great.5  And  if  a  player  deliberately  goes  outside  the 
rules  of  the  game  to  do  an  injury,  or  if  while  within 
the  rules  he  does  an  act  that  he  has  reason  to  sup- 
pose will  do  injury,  the  fact  that  he  is  playing  a 
lawful  game  will  not  excuse  him.6 

§  239.  Prevention  of  Felony.  —  Homicide  in  the  pre- 
vention of  felony  is  not  strictly  homicide  in  self- 
defence,  or  in  the  defence  of  property,  but  rests  upon 
the  duty  and  consequent  right  which  devolves  upon 
every  good  citizen  in  the  preservation  of  order,  and 
is  upon  these  grounds  excusable.7  Yet  not  every 
felony  may  be  thus  prevented,  but  only  those  open 

i  4  Bl.  Com.  182.  2  Ibid.  197. 

3  Ibid.  192  ;  ante,  §231. 

4  Foster,  Crown  Law,  3d  ed.  259. 

5  Foster,  Crown  Law,  3d  ed.  260;  Regina  v.  Bradshaw,  14  Cox 
C.  C.  83. 

6  Regina  v.  Bradshaw,  14  Cox  C.  C.  83. 

7  Pond  v.  People,  8  Mich.  150. 


228  CRIMINAL   LAW. 

felonies,  accompanied  by  violence,  which  threaten 
greal  public  injur}  not  otherwise  preventable.  Secrel 
felonies,  unaccompanied  by  force,  such,  for  instance, 
as  forgery  or  secret  theft,  and  offences  generally 
sounding  in  fraud,  cannot  be  thus  prevented.1  Even 
if  the  ciiinc  about  to  be  committed  do  not  amount  to 
a  felony,  if  it  be  of  such  forceful  character  as  to  be 
productive  of  the  most  dangerous  and  immediate 
public  consequences, — a  riot,  for  instance,  —  it  is 
held  that  death  may  be  indicted  even  by  a  private 
citizen,  if  necessary  to  prevenl  or  suppress  it.2  In- 
deed, a  riot  is  a  sort  of  general  assault  upon  every- 
body, and  so  resistance  may  he  made  upon  the 
ground  of  self-defence. 

FALSE    IMPRISONMENT. 

§  240.  False  Imprisonment,  which  consists  in  the 
unlawful  restraint  of  the  liberty  of  a  person,  is  an 
indictable  offence  at  common  law.8  No  actual  force 
is  necessary.  The  force  of  fraud  or  fear  is  sufficient 
Thus,  to  stop  a  person  on  the  highway  and  prevent 
him  by  threats  from  proceeding,  constitutes  the 
offence;-1  though  it  has  been  held  in  England,  by  a 
divided  court,  that  the  mere  prevention  from  going 
in  one  direction,  while  there  remained  liberty  of 
goinu;    in    any    other,    is    no     imprisonment.6      The 

1  Pond  o.  People,  8  Mich  150;  Priester  >•.  Augley,  5  Rich.  (S.  C.) 
Law,  44;  Stater.  Vance,  17  Iowa,  138;  State  v.  Moore,  81  Conn.  479. 

-  Patten  v.  People,  is  Mich.  314. 

"  Com.  v.  Nickereon,  5  Allen  (Mass.)  5»8;  3  Chitty  Cr.  Law,  835; 
Redfield  v.  State,  24  Tex   133;  Barber  o.  State,  18  Fla.  675. 

1  Bloomer  v  State,  3  Sneed  (Tenn.)  66  :  Searla  r.  Viets,  2  T.  &  C. 
(N.  V.  S.  c.)  224  ;  Mobob  v.  Dubois,  Dnd  (S  C.J  209. 

o  Bird  v.  Jones,  7  Q.  B.  742. 


FALSE  IMPRISONMENT.  —  RAPE.  229 

unlawful  confinement  of  a  child  by  its  parents  is  crim- 
inal ; 1  and,  no  doubt,  of  a  prisoner  by  a  jailer. 

Most  of  the  States  have  now  statutes  upon  the  sub- 
ject under  which  prosecutions  are  had.a 

RAPE. 

§  241.  Rape  is  the  unlawful  carnal  knowledge  of  a 
woman  by  force,  without  her  consent.3 

§  242.  Carnal  Knowledge.  —  Carnal  knowledge,  it  is 
now  generally  held,  both  in  this  country  and  in  Eng- 
land, is  acomplished  by  penetration  without  emis- 
sion,4 though  it  was  formerly  doubted  if  both  were 
not  necessary,— a  doctrine  still  held  in  Ohio.5  And 
penetration  is  sufficient,  however  slight.6 

The  conclusive  presumption  of  the  common  law, 
that  a  boy  under  the  age  of  fourteen  is  incapable  of 
committing  rape,  may  have  been  based  upon  the 
theory  that  emission  as  well  as  penetration  was 
necessary  to  the  commission  of  the  crime." 

§  243.  Force  and  Violence.  —  The  force  must  be 
such  as  overcomes  resistance,  which,  when  the 
woman  has  the  power  to  exert  herself,8  should  be 
with  such  vigor  and  persistence  as  to  show  that  there 

i  Fletcher  v.  People,  52  111.  395. 

2  See  Abduction,  Kidnapping. 

3  See  post,  §  244. 

4  Penn.  v.  Sullivan,  Add.  (Pa.)  143  ;  Waller  v.  State,  40  Ala.  325; 
Com.  v.  Thomas,  1  Va.  Cas.  307  ;  State  v.  Hargrave,  65  N.  C.  466  ;  St. 
9  Geo.  IV.  c.  31. 

5  Blackburn  v.  State,  22  Ohio  St.  102.     ' 

*       6  State  v.  Hargrave,  65  N.C.  466  ;  Regina  v.  Hughes,  2  Moo.C.C  190. 

7  Com.  v.  Green,  2  Pick.  (Mass.)  380;  Williams  v.  State,  14  Ohio, 
222,  where  the  presumption  is  held  to  be  rebuttable  by  proof  of 
puberty.     See  also  People  v.  Randolph,  2  Park.  C.  R.  (N.  Y.)  174. 

8  See  §  244. 


230  CRIMINAL   LAW. 

is  do  consent.  Any  less  resistance  than  with  all 
the  nrigh.1  gives  list-  to  the  inference  of  consent.1 
Where,  however,  there  is  no  resistance,  from  in- 
capacity, the  <>nly  force  necessary  is  the  force  of 
penetration.  And  fraud  does  doI  here,  as  in  si. me 
other  ruses,  supply  the  place  of  force.  If  the  con- 
seiit  be  procured,  although  by  fraud,  there  is  qo 
rape.2  Vet  it  has  been  held  thai  where  the  ravish- 
nient  was  under  the  pretence  of  medical  treatment, 
consented  to  in  the  belief  of  its  necessity,  this  was 
an  assault,  and,  it  seems,  a  rape.-  Bu1  where  the 
will  is  overcome  by  the  force  of  fear,  though  there 
be  no  resistance,  the  offence  may  be  committed.4 

§244.  Without  Consent.  —  According  to  the  old 
definition,  the  act  must  he  against  the  will  of  the 
woman;  hut  these  words  are  now  held  to  mean  with- 
out her  consent.5  If  the  woman  lie  in  a  state  of  in- 
sensibility, so  that  she  is  incapable  of  exercising  her 
will,  whether  thai  incapacity  is  broughl  about  by  the 
act  of  the  accused,  intentionally  or  unintentionally, 
or  by  the  voluntary  act  of  the  woman  herself,  and 
the  ravishment  is  effected  with  a  knowledge  of  such 

1  People  w  Dohring,  59  N.Y.  374 ;  Taylor  v.  State,  50  Ga.  79 ;  State 
v.  Bnrgdorf ,  53  Mo.  65;  People  v.  Brown,  47  Cat  447;  Com.  v.  Mc- 
Donald, 1 10  Mass.  405. 

-  McNair  v.  State,  53  Ala.  153  ;  State  v.  Bnrgdorf,  53  Mo  65 ;  Don 
Moraii  v.  People,  -J.".  Mich.  356;    Regina  v.  Saunders,  8  C.  &  P 
Clark  v.  State,  30  Texas,  4-IS.     See  however,  contra,  Regina  v  D<  b,  15 
Cox  C.  C   579  |  [re  | 

:i  Regina  <\  Case,  4  Cox  C.  C.  220. 

1  Regina  v.  Woodhnrst,  12  Cox  C  C.  443;  Wright  v.  Stnto.  4 
Humph.  (Tenn.)  194;  Croghan  >■.  Stnte,  22  Wis.  444;  People  v. 
Dohring,  it&t  supra  :  Pleasant  v  State,  13  Ark.  SI  0 

Reginat    Fletcher,  10  Cox  C.  C.  248 ;  Regina  v.  Barrow,  11  Cox 
C.  C.  191  ;  Com.  v.  Burke,  105  Mass.  376;  pot '.  §  247. 


ROBBERY.  23 : 

incapacity,  the  offence  is  committed.1  And  the 
same  would  be  true  if  the  woman  were  idiotic,  in- 
sane, or  asleep.2  Against  the  will,  or  without  con- 
sent, means  an  active  will.  There  is  a  difference 
between  consent  and  submission.  The  submission 
of  a  child  overcome  by  fear,  perhaps,  or  one  of  tender 
years,  ignorant  of  the  nature  of  the  act,  is  no  con- 
sent.3 By  the  law  of  England,  a  child  under  ten 
years  of  age  is  conclusively  presumed  to  be  incapa- 
ble of  consenting.4  In  this  country,  the  authorities 
differ,  the  weight  of  authority  being  in  favor  of  the 
English  doctrine.5 

ROBBERY. 

§  245.  Robbery  is  larceny  from  the  person  or  per- 
sonal presence  by  iorce  and  violence  and  putting  in 
fear.6 

What  constitutes  larceny,  what  may  be  stolen, 
and  what  constitutes  ownership,  that  the  taking 
must  be  felonious,  against  the  will  or  without  the 
consent  of  the  owner,  and  with  intent  to  deprive  him 
of  his  property,  will  be   shown    under  the   title   of 

i  Regina  v.  Champlin,  1  Den.  C.  C.  89;  Com.  v.  Burke,  105  Mass. 
376  ;     Regina  v.  Barrett,  12  Cox  C.  C.  498. 

2  Ibid. ;  Regina  v.  Fletcher,  8  Cox  C.  C.  131  ;  Regina  r.  Mayers, 
12  Cox  C.  C.  311  ;  s.  c  1  Green's  Cr.  Law  Rep.,  and  valuable  note  by 
Mr.  Green. 

3  Regina  v.  Day,  9  C.  &  P.  722 ;  Regina  v.  Lock,  12  Cox  C.  C.  244; 
Regina  v.  Banks.  8  C.  &  P.  574. 

4  1  Bl.  Com.  212. 

5  Hays  v.  People,  1  Hill  (N.  Y.)  351,  denied  in  Smith  v.  State,  12 
Ohio  St.  466.  See  also  Fizell  v.  State,  25  Wis.  364  ;  Gosha  v.  State,  56 
Ga.  36 ;  People  v.  McDonald,  9  Mich.  150. 

6  Com.  v.  Humphries,  7  Mass.  242;  State  v.  Gorham,  55  N.  H.  152; 
Com.  v.  Holland,  1  Duvall  (Ky.)  182. 


232  CRIMINAL    LAW. 

Larceny.1  We  arc  now  to  consider  the  additional 
circumstances  which  elevate  larceny  into  robbery. 

8  246.  Force  and  Violence.  —  There  must  be  force 
and  violence  or  putting  in  tear,  and  this  force  and 
violence  or  putting  in  tear  must  be  the  means  by 
which  the  larceny  is  effected,  and  must  be  prior  to  or 
simultaneous  with  it.  It  the  larceny  is  effected  first, 
and  the  fear  or  force  is  applied  afterwards  for  the  pur- 
pose of  enabling  the  thief  to  retain  possession  of  his 
booty,  or  for  any  other  purpose,  there  is  no  robbery.2 

While  mere  snatching  from  the  hand  or  picking 
from  the  pocket  of  a  person  will  he  hut  larceny  from 
the  person,"  it  seems  to  be  the  law  that,  it  the  article 
be  attached  to  the  person,  and  the  force  he  such  as 
to  break  the  attachment  or  to  injure  the  person  from 
whom  the  property  is  taken,  as  wfcere  a  steel  or  silk 
chain  attached  to  the  stolen  watch  and  around  the 
neck  was  broken,4  or  a  lady's  ear  from  which  a  ring 
was  snatched  was  torn,  the  offence  is  robbery,  and 
not  merely  larceny  from  the  person.'"'  So,  it  there 
is  a  struggle  for  the  possession  of  the  property  be- 
tween the  thief  and  the  owner.6  So,  also,  if  force 
be  applied  for  the  purpose  of  drawing  off  the  atten- 
tion of  the  person  being  robbed.7 

1  Post,  §  270. 

2  Harman'a  Case,  1  HaleP.C.534;   Rex  v  Francis,  2  sir    1015; 

(inosil,  1  C.  &  P.  304;  Thomas  v.  State,  9  So  Rep.  Bl  ;  s.  c.  91 
. .  la.  :S4. 

8   Post,§  293. 

1  Rex  v.  Mason,  R.  &  IL  419;  State  v.  McCune,  .">  R.  I.  60. 

'"  Kex  v.  Lapier,  i'  Bast  P.  C  .v.:. 

«■■  Davies's  Case,  i  Lear],  Cr.  L.  (4th  ed.)  290  n  ;  State  o.  Broderick, 
59  Mo  318      But  John,  .'.  Jones  (N.  C.)  163. 

7  Mahoney  v.  People,  •*>  T.  &  C  (N.  V  )  -">2'.i ;  Anonymous,  l  Lewin, 
300;  Com.  v.  Snelling,  t  Linn.  (Pa.)  379. 


ROBBERY.  233 

The  force  must  be  used  with  the  intent  of  accom- 
plishing the  larceny.  Where  a  wound  was  uninten- 
tionally inflicted  on  the  hand  of  the  owner  of  a 
basket,  the  intent  being  simply  to  cut  the  basket 
from  behind  the  owner's  wagon,  the  crime  is  simple 
larceny,  not  robbery.1 

§  247.  Putting  in  Fear.  —  Neither  actual  violence 
nor  the  fear  of  actual  violence  is  necessary  to  con- 
stitute the  offence.  The  putting  in  fear  is  using  a 
certain  kind  of  force,  or  constructive  violence.2 
Fear  of  personal  injury  is  enough,  as  where  there  is 
a  threat  to  shoot,  or  strike  with  a  dangerous  weapon, 
or  in  some  other  way  inflict  personal  injury,  even 
though  it  be  in  the  future.3  Time,  place,  and  cir- 
cumstance, as  by  the  gathering  about  of  a  crowd  ap- 
parently sympathizing  with  the  thief,  and  showing 
that  resistance  would  be  vain,4  are  to  be  taken  into 
account  in  determining  whether  this  fear  exists.5 
But  the  fear  induced  by  a  threat  to  injure  one's 
character,  or  to  deprive  him  of  a  situation  whereby 
he  earns  his  living,  is  also  enough.6  It  is  said, 
however,  that  the  fear  of  injury  to  character,  and 
consequent  loss  of  means  of  livelihood,  has  never 
been  held  sufficient,  except  in  cases  where  the  threat 
was  to  charge  with  the  crime  of  sodomy.7     So,  also, 

1  Regina  v.  Edwards,  1  Cox  C.  C.  32. 

2  Donnally's  Case,  1  Leach  Cr.  L.  (4th  ed.)  193  ;  Long  v.  State,  12 
Ga.  293. 

3  State  v.  Howerton,  58  Mo.  581. 

4  Hughes's  Case,  1  Lewin,  301. 

5  Long  v.  State,  12  Ga.  293. 

6  Rex  v.  Egerton,  R.  &  R.  375 ;  People  v.  McDaniels,  1  Parker 
C.  R.  (N.  Y.)  198;  Rex  v.  Gardner,  1  C.  &  P.  479. 

7  Britt  v.  State,  7  Humph.  (Tenn.)  45;  Long  v.  State,  12  Ga.  293; 
Rex  v.  Wood,  2  East  P.  C.  732. 


234  CRIMINAL   LAW. 

it  has  been  said  that  fear,  induced  by  the  threatened 
destruction  of  a  child,  is  sufficient.1  And  there 
serins  to  be  no  doubt  that  fear  induced  by  threats  to 
destroy  one's  property,  as  by  threats  of  a  mob  to  pull 
down  one's  house,  is  sufficient.2 

It  is  sometimes  said  that  the  elemenl  of  fear 
must  exist  in  every  fuse  in  order  to  constitute  the 
crime  of  robbery.8  But  there  may  be  cases  where 
there  seems  to  be  no  opportunity  tor  the  action  of 
fear;  as  where  one  is,  without  warning,  knocked 
senseless  by  a  single  blow,4  or  is  not  aware  of  the 
purpose  and  has  actually  no  foar,  that  being  only  a 
diversion  of  the  force  which  is  used.0  or  is  already, 
when  assaulted,  in  such  a  state  of  insensibility  as  in 
be  incapable  of  fear;6  and  the  weigh!  of  authority, 
both  ancient  and  modern,  is  that  it  need  mil  he 
alleged  in  the  indictment   under  the  common  law." 

And  those  courts  which  hold  that  fear  is  necessary 
make  the  force  which  would  ordinarily  excite  fear 
conclusive  evidence  of   it.K 

The  cases  just  cited  also  show  that  "againsl  the 
will  "  means  without  consent.9     Where  three  parties 

1  Batham,  IV.  in  Donnnlly's  Case,  1  Leach  Cr.  I.  (4th  ed.)  193; 
Eyre,  C.  J.,  Reane's  Case,  2  Leach  Cr.  L.  (4th  ed.)  616. 

"  Rex  v   Astley,  2  East  P.  C.  729 ;  Rex  w  Winkworth,  4  C.  &  P.  444. 

»  1  Hawk.  1'.  C.  (Ml,  ed.)  21  i. 

4  Foster  C.  I-  128  :  McDaniel  r.\  State,  8  S.  &  ML  i  Mis-.)  401. 

b  Com.  v.  Snelling,  4  Binn.  (Pa.)  379  ;  Mahoney  v.  People,  5  T 
V  V.i  329. 

a  Bloomer  v.  People,  I  AM..  Ap   Dec.  (N   V.)  1 16 

i  Donnally's  Case,  1  Leach  Cr.  L.  (4th  ed.)  193;  Rex  v.  McDaniel, 
rC.L.  121 ;  Com.  v.  Humphries,  7  Mass.  242;  State  v.  Broderick, 
59  Mo  318;   State  v  Gorham,  55  N   EL  152. 

K  Long  '•  State,  12  <ia.  293;  Reane's  Case,  2  Leach  Cr.  L.  (4th 
ed.)  616. 

9  See  also  Larceny,  post,  §  270. 


ROBBERY.  235 

get  up  a  pretended  robbery  for  the  sake  of  obtain- 
ing a  reward,  the  taking  is  not  against  the  will,  or 
without  consent.1  Nor  is  it  where  the  property  is 
parted  with  for  the  purpose  of  making  a  case  for 
prosecution.2 

§  248.  The  Taking  must  be  from  the  person,  or 
from  the  personal  presence.  Thus,  if  a  man  assaults 
another,  and,  having  put  him  in  fear,  drives  away  his 
cattle  from  the  pasture3  in  his  presence,  or  picks  up 
a  purse  from  the  ground,  which  had  fallen  or  been 
thrown  into  a  bush  during  the  scuffle,  the  taking  is 
complete.4  The  question  is,  whether  the  chattel  at 
the  time  it  was  taken  was  under  the  protection  of 
the  person.5  But  the  possession  of  the  robber,  if 
complete,  need  be  only  momentary ;  and  if  it  be  im- 
mediately taken  away  from  him,  it  is  still  robbery.6 
Though  the  thief  obtain  possession  by  delivery  from 
the  owner,  as  where  he  points  a  pistol,  and  either 
directly  demands  money,7  or  demands  it  under  pre- 
tence of  asking  alms,3  even  after  having  ceased  to 
resort  to  force,9  —  the  delivery  in  each  case  being 
induced  by  fear,  — it  is  a  taking  within  the  meaning 
of  the  law,  and  he  is  in  each  case  guilty  of  robbery. 
And  so  may  a  forced  sale  be  robbery,  where  the  de- 

1  Rex  v.  McDaniel,  Foster  C.  L.  121. 

2  Rex  v.  Fuller,  R.  &  R.  408. 

3  1  Hawk.  P.  C.  (8th  ed.)  214. 

*  2  East  P.  C.  707  ;  United  States  v.  Jones,  3  Wash.  C.  Ct.  209 ; 
Crews  v.  State,  3  Cold.  (Tenn.)  350  ;  1  Hale  P.  C.  533  ;  Long  v.  State, 
12  Ga.  293. 

5  Regina  v.  Selway,  8  Cox  C.  C.  235. 

6  Peat's  Case,  1  Leach  Cr.  L.  (4th  ed.)  228. 

7  Norden's  Case,  Foster  C.  L.  129. 

8  1  Hale  P.  C.  533. 

9  1  Hawk.  P.  C.  (8th  ed.)  214,  §  7. 


236  CRIMINAL  LAW. 

Livery  is  obtained   by  Hear,1  if  the  full  value  be  not 
given  in  return  for  the  property  taken.2     And  where 

a  man  who  is  attempting  rape,  to  whom   the  unman 
gives  money  to  induee  him  to  desist,  continues  his 

assault,  lie  is  guilty  of  robbery.3 

i  Rex  '•.  Simons,  2  East  1'.  C.  712. 

2  Fisherman's  Case   2  East  1'.  ('.  G61  ;  4  El.  Com.  244. 

3  Rex  v.  Blackhiun,  2  Eust  1'.  C.  711. 


OFFENCES  AGAINST  A   DWELLING-HOUSE.       237 


CHAPTER  VII. 

OFFENCES    AGAINST    A    DWELLING-HOUSE. 
§  250.    Arson.  |  §  256.    Burglary. 

§  249.  Protection  of  a  Dwelling-house.  —  The  law 
gives  a  special  protection  to  a  dwelling-house,  as  a 
man's  castle,  within  which  it  is  for  the  public  inter- 
est that  he  should  be  protected.  We  have  already 
seen  J  that,  when  attacked  in  his  dwelling-house,  a 
man  may  take  life  to  keep  out  the  intruders.  In 
addition  to  this  measure  of  protection,  the  common 
law  punishes  certain  violations  of  the  protection  of  a 
dwelling.  Two  important  crimes  are  of  this  sort: 
arson  and  burglary. 

ARSON. 

§  250.  Arson  is  the  malicious  burning  of  another's 
dwelling-house.      «• 

It  is  an  offence  against  the  security  afforded  by  a 
man's  dwelling-house ;  and  the  law  looks  upon  it  in 
this  light,  rather  than  as  an  injury  to  his  property. 
It  regards  the  violation  of  the  sanctity  of  one's  abode 
as  a  much  graver  offence  than  the  mere  injury  to  his 
property,  just  as  it  regards  the  larceny  of  a  watch 
from  the  person  or  from  a  building  as  a  graver 
offence  than  the  simple  larceny  of  the  watch  without 

1  Ante,  §  67. 


CRIMINAL   LAW. 

these  attendant  circumstances.3  The  property  pro- 
tected is  the  house,  nol  its  materials;  it  is  not  arson 
to  pull  down  a  house  and  then  sel  fire  to  the  pile  of 
lumber.2 

§  251.  What  "Dwelling-house"  embraces.  —  At  com- 
mon law  the  term  "dwelling-house"  embraced  all 
outhouses  within  the  same  curtilage,  and  u>n\  as 
part  and  parcel  of  the  residence,  though  not  under 
the  same  roof.3  Curtilage  means  an  enclosure  of  a 
piece  of  land  around  a  dwelling-house,  usually  in- 
cluding the  buildings  occupied  in  connection  with 
the  use  of  the  dwelling-house,  whether  the  enclosure 
be  made  by  a  fence  or  by  the  buildings  themselves;4 
and  a  barn,  the  front  of  which  forms  part  of  the 
division  fence,  is  within  the  curtilage.5 

§  252.  Dwelling-house.  Ownership.  —  Simply  burn- 
ing one's  own  house  is  not  arson,  nor  any  offence,  at 
common  law,  unless  it  lie  accompanied  by  a  design 
to  injure.6  But  by  statute  in  some  of  the  States  the 
wilful  and  malicious  burning  of  any  building  is 
made  punishable;  and  in  such  case  the  owner  may 
he  guilty  of  the  offence  by  burning  his  own  barn.7 
He  may  he  said  to  own  the  house  who  has  the  right 
of  present  possession,  as  the  lessee  or  mortgagor 
before  foreclosure.8     A  husband  is  not  guilty  of  the 

i  People  v.  Gates,  15  Wend.  (X.  Y.)  159. 

-  Mulligan  v.  State,  25  Tex.  A], p.  199.  3  4  BI.  Com.  221. 

4  Com.  v.  Barney,  lo  Cush  (Mass.)  478;  post,  Burglar]  ;  Bishop, 
Stat.  Crimes,  §  277  et  Beq.  ;    People  v.  Taylor,  2  Mich.  250. 

5  Washington  v.  State.  82  Ala.  31. 

8  Bloss  v.  Tobey,  2  Pick   (Mass..)  820. 

7  State  v  Hunl,  7)1  N.  II.  176.  See  al*o  Shepherd  v.  People,  10 
X    V.   537. 

"  People&.Van  Blarcum,2 Johns. (N.Y.)105;  Rex  v. Pedley,  1  Leach 
Cr.  L.  (4th  ed.)  242;   Hex  v.  Spalding,  l  Lea*  b  Cr.  I..  (  uh  ed.)  218. 


ARSON.  239 

crime  who  burns  the  house  which  he  jointly  occu- 
pies as  tenant  by  the  curtesy  with  his  wife,  who 
owns  the  fee ;  nor  the  wife  who  sets  fire  to  her  hus- 
band's house;1  though  a  widow  whose  dower  has  not 
been  assigned,  and  who  has  no  present  right  of  pos- 
session, the  house  being  occupied  by  a  tenant,  may 
be  guilty  of  it.  So  of  a  reversioner,  who  burns  the 
house  before  the  tenant's  right  of  occupation  has 
expired.2  A  servant,  though  living  in  the  house, 
yet  having  no  right  of  possession,  may  commit  the 
crime;3  but  a  tenancy  for  a  year,  or  any  special 
ownership  which  carries  with  it  the  right  of  posses- 
sion at  the  time  of  the  burning,  is  sufficient  to  exempt 
from  guilt.4 

§253.  Dwelling-house.  Occupation.  —  The  building 
will  be  considered  a  dwelling-house  within  the  mean- 
ing of  the  law,  if  actually  occupied  as  such,  though 
it  may  not  have  been  erected  for  that  purpose,  and 
may  also  be  occupied  for  other  purposes,  as  for  a 
jail,  or  a  building  occupied  in  part  as  a  lodging- 
house.5  It  must  be  in  some  substantial  sense  an  oc- 
cupied house,  and  that,  by  the  person  alleged  to  be 
the  owner.  It  is  not  necessary  that  he  should  be 
actually  present  in  the  house  at  the  time  of  the  burn- 

1  Snyder  v.  People,  26  Mich.  106 ;  Rex  v.  March,  1  Moo  182.  But  in 
Indiana  it  is  held  that  under  the  statute  the  wife  is  guilty  of  arson  who 
hums  her  husband's  house.    Emig  v.  Daum,  27  N.  E.  Pep.  322  (Ind.). 

2  Regina  v.  Harris,  Fost.  Cr.  Law,  113. 

3  Rex  v.  Gowen,  2  East  P.  C.  1027. 

«  McNeal  v.  Woods,  3  Blackf.  (Ind.)  485;  2  East  P.  C.  1022; 
People  v.  Gates,  15  Wend.  (N.  Y.)  159  ;  State  v.  Lyon,  12  CoDn.  487. 
See  also  post,  Burglary. 

5  People  v.  Orcutt,  1  Park.  C.  R.  252;  People  v.  Cotteral,  18  Johns. 
(N.  Y.)  115;  Smith  v.  State,  23  Tex.  App.  357.  See  however,  contra, 
Jenkins  v.  State,  53  Ga.  33. 


240  CRIMINAL   LAW. 

ing.  If  the  house  contain  the  occupant's  effects, 
and  he  has  the  design  to  return,  after  a  temporary 
absence,  this  is  a  sufficient  occupation  to  constitute 
it  a  dwelling-house.1  Mere  ownership,  without  oc- 
cupancy by  the  owner,  is  not  sufficient.2  Nor  is  the 
fact  that  it  is  habitable,  and  intended  for  occupancy, 
unless  it  is  also  in  some  sense  used  as  a  place  of 
residence.3  It  must  be  a  completed  house,  ready  for 
occupancy,  and  not  an  abandoned  one,  unfit  for  habi- 
tation.4 

£  J">4.  Malice.  —  The  malice  requisite  to  constitute 
the  crime  is  that  general  malice  which  accompanh  s 
a  criminal  purpose.  Carelessness  or  negligence, 
without  a  specific  intent  unlawfully  to  burn  or  to  do 
some  other  wrong,  does  not  constitute  the  malice 
which  is  an  essential  ingredient  in  the  crime  of 
arson.5  But  when,  intending  to  burn  the  house  of 
one.  the  accused  burns  the  house  of  another,  the 
crime  is  committed.  Arson  being  intended  and 
committed,  it  is  not  permissible  thai  the  guilty  party 
should  escape  the  consequences  by  alleging  his  mis- 
take as  to  one  of  the  varying  incidents  of  the  crime. 
So  far  as  the  public  offence  is  concerned,  it  is  im- 
material whether  the  house  burned  ho  that  of  one 
person  or  another.6  And  one  may  be  guilty  of  arson 
by  setting  fire  to  his  own  house,  whereby  the  house 
of  another  is  burned,  if  the  proximity  was  such  that 

1  Johnson  v.  State,  48  Ga.  110;  State  v.  Toole,  l".>  Conn.  342. 

2  Com.  v.  Barney,  10  Cush.  (Mass.)  178 

8  State  v.  Warren,  33  Me.  30;  Honker  v.  Com.,  13  Grat.  (Va.)  703. 
4  State  i'.  McGowen,  20  Conn.  245;    Elsmore  v.  St   Briavels,  8  B. 
&  C.  4f,l.     See  also  Miliary  v.  People,  i.">  N.  V.  153. 
&  4  Bl.  Com.  222. 
«  1  Hale  P.  C.  569;  1  Hawk.  P.  C.  (8th  ed.)  139,  §  15. 


ARSON.  241 

the  burning  of  the  latter  was  the  natural  and  prob- 
able consequence  of  burning  the  former.1  If  the 
burning  accomplished  was  not  with  a  felonious  in- 
tent, but  for  a  purpose  which  if  accomplished  would 
constitute  a  crime  of  a  grade  below  a  felony,  —  as 
where  a  prisoner  sets  fire  to  the  jail  in  which  he  is 
confined  with  the  purpose  of  thereby  effecting  his 
escape,  — this,  it  has  been  held,  is  not  arson,  if  the 
attempt  to  escape  is  only  a  misdemeanor.2  But  the 
contrary  has  been  held  in  Alabama;3  and  in  Eng- 
land a  person  who  set  the  fire  for  the  purpose  of 
getting  the  reward  offered  for  the  earliest  informa- 
tion of  it  was  held  guilty  of  arson.4 

The  cases  upon  this  point,  however,  seem  to  be 
wholly  irreconcilable.  Where  there  is  the  intent  to 
burn  coincident  with  the  act  of  burning,  the  crime 
seems  to  be  complete,  upon  general  and  well  settled 
principles  and  according  to  every  definition ;  and  the 
fact  that  the  burning  was  the  secondary  rather  than 
the  primary  purpose  —  a  felonious  means  to  an  un- 
lawful but  not  felonious  end  —  does  not  seem  to 
relieve  it  in  any  respect  or  degree  of  its  criminality. 
It  sounds  strangely,  and  seems  not  in  accordance 
with  sound  reason  or  public  policy,  that  one  who 
intentionally  commits  a  felony  and  a  misdemeanor, 
the  former  as  a  step  towards  the  latter,  shall  be 
deemed  less  guilty  than  he  would  have  been  if  the 
commission  of  the  felony,  had  been  his  sole  purpose, 

1  Rex  v.  Isaac,  2  East  P.  C.  1031. 

2  People  v.  Cotteral,  18  Johns.  (N.  Y.)  115;  Delany  v.  State,  41 
Tex.  601  ;    State  v.  Mitchell,  5  Ired.  (N.  C.)  350. 

3  Luke  v.  State,  49  Ala.  30. 

4  Regina  v.  Regan,  4  Cox  C.  C.  335. 

16 


242  CRIMINAL   LAW. 

and  he  had  committed  no  misdemeanor.1  The  fail- 
ure to  observe  the  distinction  between  intenl  and 
motive,  the  former  of  which  qualifies  the  act,  while 
the  latter  moves  to  it,2  has  doubtless  led  to  the 
confusion.  The  man  who  deliberately  sets  fire  to 
and  hums  a  jail  intends  to  burn  it.  whether  his 
motive  be  self-sacrifice,  revenge,  escape,  <>v  reward.3 

The  ease  miglrl  be  different  if.  while  a  party  is  steal- 
ing in  a  building,  he  accidentally,  by  dropping  a 
match,  sets  lire  to  the  building.  It  has  been  re- 
cently held  in  Ireland  that  this,  if  done  on  hoard  a 
vessel,  would  not  come  within  a  statute  punishing 
the  malicious  burning  of  a  vessel.4  Bui  it  mighl  be 
douhtful,  in  ease  of  arson,  if  there  is  any  malice  or 
evil  intenl  in  the  crime  intended,  —  if  it  he  not  a 
mere  malum  prohibitum.6 

§  ^ ">.").  Burning  means  an  actual  combustion  of 
some  portion  of  the  house,  so  that  the  wood  is  actu- 
ally on  lire.  It  is  sufficienl  if  it  is  charred.  It  is 
not  necessary  that  it  he  consumed  or  destroyed  ;e  but 
mere  scorching  is  not  enough.7 

1  See  1  Bieh.  Cr.  Law,  S§  .-?L>.3-.'i 45  ;  2  BisL  Cr.  Law,  §§  14,  15. 

■-  Ante,  §  26. 

:;  Regina  o.  Regan,  l  Co*  C.C.  335. 

*  Regina  v.  Faulkner,  13  Cox  ('.  (\  550. 

5  2  Rubs  on  <  'rimes.  486. 

6  People  17.  Haggerty,  46  I  !al.  354  ;  Com.  v.  Tucker,  110  Mass  103  . 
People  v.  Butler,  16  Johns.  (N.  V.)  203;  Mary  v.  State,  24  Ark.  it 
The  statutes  of  most  if  not  all  of  the  States  have  modified  the  common 
law  of  arson  to  a  greater  or  less  extent ;  and  while  decisions  will  lie 
found  apparently  inconsistent  with  the  principles  Btated  in  the  text,  it 
■will  doubtless  be  found  that  such  decisions  depend  upon  the  peculiari- 
ties of  the  respective  statutes. 

'  Woolsey  v.  State,  17  S.  W.  Hep.  546  (Tex.  Ct.  App.). 


BURGLARY.  243 


BURGLARY. 


§  256.  Burglary  is  the  breaking  and  entering  of 
another's  dwelling-house  in  the  night-time,  with  in- 
tent to  commit  a  felony  therein.1  The  breaking 
may  be  actual  or  constructive. 

§  257.  Actual  Breaking  takes  place  when  any  apart- 
ment of  the  house  is  broken  into  by  force;  as  by 
lifting  a  latch,  or  sliding  a  bolt,2  or  turning  a  lock 
or  the  fastening  of  a  window,  or  breaking  or  remov- 
ing a  pane  of  glass,  or  lifting  up  or  pulling  down 
an  unfastened  window-sash  or  trap-door,  or  pulling 
open  a  sash  which  swings  on  hinges,  or  cutting 
out  a  netting  of  twine  which  is  fastened  over  an 
open  window,  or  opening  the  outside  shutters.  The 
offence  consists  in  violating  the  common  security  of 
the  dwelling-house.  It  is  immaterial  whether  the 
doors  and  windows  are  fastened  or  unfastened,  pro- 
vided the  house  is  secured  in  the  ordinary  way,  and 
is  not  left  so  carelessly  open  as  to  invite  an  entry.3 
But  leaving  the  door  or  window  ajar,  or  unclosed 
even  to  a  slight  degree,  and  not  so  far  as  to  admit 
the  body,  would  constitute  such  an  invitation,  so 
that  opening  them  further  would  not  amount  to  a 
burglarious  breaking;4  and  entry  through  an  open 
transom  is  not  a  breaking,5  though  lifting  an  un- 
fastened transom  which  swings  upward  is  a  break- 

i  1  Hawk.  T.  C.  (8th  ed.)  129. 

2  State  v.  O'Brien,  46  N.  W.  Rep.  867 ;  s.  c.  81  Iowa,  93. 

3  Com.  v.  Stephenson,  8  Pick.  354  ;  Rex  v.  Haines,  R.  &R.C.  C.  451; 
Rex  v.  Russell,  1  Moo.  C.  C.  377  ;  s.  c.  2  Lead.  Cr.  Cas.  48,  and  note. 

4  Rex  v.  Smith,  1  Moo.  C.  C.  178;  Rex  v.  Hyams,  7  C.  &  P.  441 ; 
Com.  v.  Strupney,  105  Maps.  588. 

5  McGrath  v.  State,  25  Neb.  780. 


^44  CRIMINAL    LAW. 

in:;-.1  It  is  also  held  thai  entering  a  house  by  way 
of  the  chimney,  or  even  getting  into  the  chimney,  is  a 
breaking,  though  no  actual  force  is  used,  since  it  is 
not  usual  to  secure  such  an  opening,  and  the  house  is 
as  much  closed  as  is  reasonable  or  requisite.2 

§  258.  Constructive  Breaking. — A  constructive  break- 
ing is  wlicro  fraud  or  threats  are  substituted  for 
force,  whereby  an  entry  is  effected;  as  where  en- 
trance is  procured  by  conspiring  with  persons  within 
the  house;3  or  by  pretence  of  hiring  Lodgings,  ob- 
taining refreshment,  or  other  husiness;4  or  under 
color  of  legal  process  fraudulently  obtained ; 6  or  by 
enticing  the  owner  out  of  his  house,  if  the  entry  be 
made  immediately,  and  before  the  owner's  family 
have  time  to  shut  the  door.6  So  where  defendant 
secreted  himself  in  a  box,  which  he  procured  to  be 
put  in  an  express  car  by  the  agenl  of  the  express 
company,  this  was  held  a  breaking  of  the  car.7 

J;  259.  Breaking.  Connivance,  or  Consent.  — -  Cut  if 
the  owner,  being  apprised  by  his  servant  of  a  plan 
to  rob  the  house,  gives  his  servant  the  keys,  with 
instructions  to  carry  out  the  plan,  and  the  servant 
and    the    prisoner    go   together    into   the    house,   the 

i  Timmons  v.  State,  34  Ohio  St.  42f>. 

2  Rex  v.  Brice,  B.  &  1!.  C.  C.  450;  State  v.  Willis,  7  Jones  (NT.  ('  ) 
I....V.  190;    Walker  .•.  State,  52  Ala   376. 

;  2  East  1'.  ( '.  isr, ;  State  v.  Bowe,  i  S.  E.  Rep  506  ;  s.  <\  38  X.  C.  629. 

4  2  Last  P.  C.  486;  Stat,'  -•.  Mordecai,  68  V  < '.  207;  Johnston  v. 
Com.,  85  Pa.  54. 

6  Hex  v.  Farr,  J.  Kelyng,  43  ,  2  Last  P  C  486;  State  v.  Johnson, 
Ph.  (N.  C.)  180. 

8  State  v.  Henry,  0  Ired.  (N.  C.)  463.  Bui  see  opinion  of  Rnffin, 
( '■  3  .  who  dissented  upon  the  poinl  as  to  the  necessity  of  immediate 
entry.    Sec  also  Breese  v.  State,  12  Ohio  St.  146. 

7  Nicholls  r.  Stale,  68  Wis.  416. 


BURGLARY  245 

servant  unlocking  the  door,  this  is  said  to  be  no 
burglary,  as  the  act  is  by  the  owner's  consent ; i 
though  if  the  owner,  being  so  apprised,  merely  lies 
in  wait  for  the  purpose  of  detecting  the  perpetra- 
tors, this  is  no  consent,  and  they  will  be  guilty  of 
the  offence.2 

§  260.  Dwelling-house.  —  The  breaking  must  be  of 
some  part  of  that  actual  enclosure  which  constitutes 
the  dwelling-house.  The  mere  passage  across  that 
imaginary  line  with  which  the  law  surrounds  every 
man's  realty,  and  which  constitutes  a  sufficient 
breaking  upon  which  to  found  the  action  of  trespass 
quare  clausum  /regit,  is  not  sufficient.  But  where 
part  of  a  structure  is  occupied  as  a  dwelling,  it  is 
burglary  to  break  into  another  part  within  the  same 
walls  and  under  the  same  roof,  as,  for  instance,  a 
lower  floor  occupied  by  the  same  person  as  a  shop, 
though  there  is  no  internal  connection  between  the 
two  parts.3 

§  261.  Breaking  within  the  House.  —  The  breaking 
of  the  outer  enclosure  is  not  essential,  if,  after  the 
entry  through  this,  the  house  or  some  parts  of  it 
be  broken.  Thus,  the  forcing  of  the  fastened  outer 
shutters  of  a  window  would  be  a  breaking ;  if  these 
happened  to  be  open,  then  the  forcing  of  the  window 
would  be  a  breaking;  and  if  both  were  open,  and  an 
entry  be  effected  through  them,  then  a  breaking  open 

1  Allen  v.  State,  40  Ala.  334.     See  also  Regina  v.  Hancock,  C.  C.  R., 
v6  Reptr.  351. 

2  Thompson  v.  State,  18  Ind.  386  ;  Rex  v.  Bigley,  1  C.  &  D.  (Irish) 
C.  C.  202.  Compare  also  Alexander  v.  State,  12  Tex.  540,  with 
Regina  v.  Hancock,  ubi  supra. 

3  Quinn  v.  People,  71  N.  Y.  561  ;  People  v.  Griffin,  43  N.  W.  Rep. 
1061 ;  s.  c.  77  Mich.  585. 


24G  CRIMINAL   LAW 

of  an  inner  door,  a  part  of  the  house,  would  con- 
stitute the  offence;1  though  not  the  breaking  open 
a  chest,  cupboard,  clothes-press,  or  other  movable, 
not  pari  of  the  house.2  So  if  one  guesl  al  an  inn 
break  and  enter  the  room  of  another  guest,  it  is  bur- 
glary.3 It  was  formerly  doubted  whether  an  inn- 
keeper would  be  guilty  of  burglary  by  breaking  and 
entering  the  room  of  his  guest,  the  doubt  resting 
upon  the  question  whether  the  room  was  the  guest's 
for  the  time  being.4  Under  statutes  making  a  spe- 
cial or  constructive  ownership  sufficient,  the  doubt 
can  hardly  exist.'' 

§262.  Breaking  out.  —  It  was  early  enacted,6  to 
solve  the  doubts  which  had  theretofore  prevailed, 
thai  the  entry  by  day  or  by  night  into  a  dwelling- 
house  without  breaking,  with  intent  to  commit  a 
felony,  and  the  breaking  out  of  the  house,  should 
constitute  the  crime  of  burglary.  And  such,  we 
believe,  is  the  law  in  England  to  the  present  day.7 
The  indictment  should  charge  the  breaking  out;  and 
if  so  charged,  it  seems  that  in  this  country  the  pris- 
oner may  be  convicted,  where  the  statute  of  A.nne 
has  been  adopted  as  part  of  the  common  law,  or 
has  been  substantially  followed  by  the  statute  of  the 
State,8  but  not  otherwise.9     No  case  has  been  found 

1  State  r.  Scripture,  42  X.  II.  485;  Holland  v.  Cum.,  85  Pa.  GG , 
Slate-  v.  Wilson,  Coxe  (N.  J.)  439. 

-  [bid. 

:!  State  v.  Clark,  42  Vt.  G29. 

4  2  Bish.  Cr   Law,  §  10G. 

6  Post,  §  265  r'   12  Anno.  r.  1.  §  7. 

7  Steph.  Dig.  Cr.  Law,  art.  319;  Rex  v.  McKearney,  Jcbb  C.  C. 
99 ;  s.  c.  2  Lead.  Cr  ("as  62  and  note 

8  State  v.  McPherson,  70  N.  C.  239. 

9  White  v.  State,  51  Ga.  285. 


BURGLARY.  247 

of  a  conviction  under  such  an  indictment;  and  it  is 
at  least  doubtful  if  it  would  now  anywhere  be  held, 
unless  under  the  clearest  evidence  that  the  statute 
of  Anne  is  obligatory,  that  a  breaking  out  to  escape 
is  a  sufficient  breaking  to  constitute  burglary. 1 

§  263.  Entry.  —  In  order  to  constitute  an  entry,  it 
is  not  necessary  that  the  whole  person  should  be 
within  the  house.  Thrusting  in  the  hand  or  a  stick, 
for  the  purpose  of  getting  possession  of  goods  within, 
through  an  aperture  broken  for  the  purpose,  is  an 
entry.  But  the  mere  passage  of  the  instrument 
through  in  breaking,  as  an  auger  by  which  the 
break  is  effected,  has  been  held  not  to  be  an  entry ; 2 
yet  where  the  auger  also  effects  the  entry,  as  where 
one  bores  through  the  floor  of  a  corn-crib  and  the 
corn  runs  down  through  the  hole,  that  is  a  sufficient 
entry.3  And  the  thrusting  the  hand  underneath  the 
window,  to  lift  it,  so  that  the  fingers  extend  to  the 
inside  of  the  window,  has  been  held  to  be  a  suf- 
ficient entry.4  So  the  sending  in  of  a  boy  after 
breaking,  the  boy  being  an  innocent  agent,  to  bring 
out  the  goods,  is  an  entry  by  the  burglar,  who  all  the 
while  remains  outside.5  The  cases  seem  to  estab- 
lish the  rather  nice  distinction,  that,  where  the  im- 
plement held  in  the  hands  passes  within  the  enclosure 
for  the  purpose  of  breaking  only,  there  is  no  entry ; 
but  if  either  the  hand  or  implement  passes  in  for  the 

1  Rolland  v.  Com.,  85  Pa.  66. 

2  4  Bl.  Com.  227;  Rex  v.  Hughes,  1  Leach  Cr.  L.  (4th  ed.)  406; 
Rex  v.  Rust,  1  Moo.  C.  C.  183. 

3  Walker  v.  State,  63  Ala.  49. 

*  Franco  v.  State,  42  Tex.  276.  See  also  Rex  v.  Davis,  R.  &  R, 
C.  C. 499. 

5  1  Hale  P.  C.  555. 


048  CRIMINAL   LAW 

purpose  of  committing  the  intended  felony,  there  is 
an  entry.  And,  upon  principle,  there  seems  to  be 
no  doubt  that  one  who  shoots  a  ball  or  thrusts  a 
sword  through  a  window  with  intent  to  kill,  though 
he  tail  of  his  purpose  to  kill,  is  nevertheless  guilty 
of  breaking  and  entering.1 

8  -H'A.  Dwelling-house.  Occupancy.  —  As  in  arson. 
the  dwelling-house  comprehends  all  the  buildings 
within  the  same  curtilage  or  common  fence,  and 
used  by  the  owner  as  part  and  parcel  thereof,  though 
not  contiguous;2  as.  tor  instance,  a  smoke-house, 
the  front  pari  and  doors  of  which  were  in  the  yard 
of  the  dwelling-house,  though  the  rear,  into  which 
the  break  and  entry  were  made,  was  not.8  It  must 
he  a  place  of  actual  residence  or  habitation,  though 
it  is  not  essential  that  any  one  should  be  within  at 
the  \i'vy  time  of  the  offence.  It  the  occupants  are 
away  temporarily,  but  with  the  design  of  returning, 
and  it  is  the  house  where  they  may  be  said  to  live, 
—  their  actual  residence, — this  constitutes  it  their 
dwelling-house.  But  occupation  otherwise  than  as 
a  place  of  residence,  as  tor  storage,  or  even  casually 
lor  Lodgings,  or  if  persons  not  of  the  family  nor  in 
the  general  service  of  the  owner  sleep,  bu1  do  not 
otherwise  live  there,  and  for  the  purpose  of  protec- 
tion only,  it  is  not  a  dwelling-house  in  the  sense  of 
the  law.  Nor  is  a  temporary  booth  or  tent  erected 
at  a  fair  or  market  such  a  dwelling-house. '     If,  how- 

1  An/?,  §  26. 

-  AnU  .  S  251. 

3  Fisher  v,  State,  43  Ala.  17. 

*  Armour  >■  State  '■'<  Humph.  (Trim  (879  Com.  v.  Brown  8  Rawle 
(Pa.)  207;  Mate  v.  Jenkins,  ■>  Jones  (N.  C.)  4:30,  ■';  Greenl  Ev., 
§§  79,  BO 


BURGLARY.  249 

ever,  the  house  be  habitually  occupied  in  part  as  a 
storehouse  and  in  part  as  the  lodging  place  of  the 
servants  and  clerks  of  the  owner,  it  is  his  dwelling- 
house.1  And  if  it  be  habitually  slept  in  by  one  of 
the  family,  or  one  in  the  service  of  the  owner,  even 
if  slept  in  for  the  purpose  of  protection,  it  has  been 
held  to  be  a  dwelling-house  within  the  sense  of  the 
law;2  and  by  the  same  court,  that  if  the  person  so 
sleeping  in  the  store  for  its  protection  be  not  a  mem- 
ber of  the  family,  or  in  the  service  of  the  same,  he 
is  but  a  watchman,  and  the  store  cannot  be  said  to 
be  the  dwelling-house  of  the  owner.3 

§  265.  Dwelling-house.  Ownership.  —  There  may  be 
many  dwelling-houses  under  the  same  roof;  as 
where  separate  apartments  are  rented  to  divers  occu- 
pants, who  have  exclusive  control  of  their  several 
apartments4  If,  however,  the  general  owner  also 
occupies,  by  himself  or  his  servant,  the  building  in 
part,  exercising  a  supervision  over  it,  and  letting  it 
to  lodgers  or  to  guests,  the  house  must  be  treated  as 
his,  unless,  as  in  some  States  is  the  case,  a  special 
or  constructive  ownership  is  made  by  statute  suffi- 
cient evidence  of  ownership.5  But  this  is  rather  a 
question  of  procedure,  not  pertaining  to  the  defini- 
tion of  the  crime.6 

A  church  being,  as  Coke  says,  the  mansion-house 
of  the  Almighty,  is  by  the  common  law  a  dwelling- 

1  Ex  parte  Vincent,  26  Ala.  145. 

2  State  i'.  Outlaw,  72  N.  C.  598 ;  State  v.  Williams,  90  N.  C.  724. 
8  State  v.  Potts,  75  N.  C.  129. 

*  Mason  v.  People,  26  N.  Y.  200. 

6  3  Greenl.  Ev.,  §§  57,  81  ;  State  v.  Outlaw,  72  N.  C.  598. 

6  See  also  Arson,  ante,  §  253. 


250  CRIMINAL   LAW. 

house,  within  the  meaning  of  the  definition  of  bur- 
glary. '     So  was  a  walled  town.2 

§266.  Time.  —  The  time  of  both  breaking  and 
entering  must  be  in  the  uight,  and  this,  at  common 
law,  was  usually  held  to  be  the  period  during  which 
the  lace  of  a  person  cannot  he  discerned  by  the  lighl 
of  the  sun;  though  some  authorities  fixed  the  limits 
more  exactly  as  the  period  between  sunset  and  sun 
rise.3  Now,  by  statute,1  in  England,  night  begins 
at  nine  and  ends  at  six.  In  Massachusetts,  the 
meaning  of  "night-time"  in  criminal  prosecutions 
is  defined  to  he  from  one  hour  alter  sunset  to  one 
hour  before  sunrise;6  and  doubtless  other  States 
have  fixed  the  limit  by  statute.  It  may  happen  that 
the  acts  culminating  in  the  commission  of  the  in- 
tended felony  extend  through  several  days  and 
nights,  as  where  one  is  engaged  day  and  night  in 
working  his  way  through  a  substantial  partition 
wall.  If  the  actual  perforation  lie  made  during  one 
night,  and  the  entry  on  the  same  or  a  subsequent 
night,  the  offence  is  complete,  both  being  in  pur- 
suance of  the  same  design.6  In  some  States,  by 
statute,  the  question  of  time  becomes  immaterial. 

§  267.  Intent.  —  As  the  breaking  and  entry  must 
he  with  intent  to  commit  a  felony,  the  intent  to  com- 
mit  a  misdemeanor  only  would  not   he  aufficieni   to 

constitute  the  crime.      Thus,  a  break   ami  entry  with 
intent   to  commit   adultery  would  or  would  not   con- 

1  .3d  Inst,  f.4  ;  Regina  v.  Baker,  :t  Cox  C.  C.  581. 

2  4  Bl.  Com.  224. 

8  1  Hawk.  P.  C.  (8th  ed.)  130,  §  2. 

4  7  Win    IV.  &  1  Vict.  c.  86,  §4. 

5  ('(.in.  v.   Williams.  2  <   usli    I.Mass.)  582. 

6  Hex  v.  Smith,  15.  X  K.  t!7  ;   Cum.  r.  Glover,  111  Mass.  395. 


BURGLARY.  251 

stitute  the  offence,  according  as  adultery  might  be  a 
felony,  misdemeanor,  or,  as  in  some  States  it  is,  no 
crime  at  all ; 2  and  if  the  intent  be  to  cut  off  the 
owner's  ears,  this  is  not  a  burglary,  since  the  cutting 
off  an  ear  does  not  amount  to  felony  —  mayhem  — ■ 
at  common  law.2  So  if  the  person  who  breaks  is  so 
intoxicated  as  to  be  incapable  of  entertaining  any 
intent^3 

§  268.  Statutory  Breakings.  —  The  crime  of  burglary 
has  been  much  extended  by  statute.  Thus  breaking 
and  entering  in  the  day-time  has  been  made  crimi- 
nal ;  and  so  has  larceny  from  a  dwelling-house,  though 
there  has  been  no  breaking.  Other  buildings  have 
been  given  protection,  and  in  most  jurisdictions  it  is 
made  a  crime  to  break  and  enter  any  building  for  the 
purpose  of  committing  felony  therein.  An  unfinished 
building,  which  is  however  used  for  storing  tools, 
is  a  building  within  such  a  statute,4  and  it  is  a  suffi- 
cient breaking  to  cut  through  canvas  screens  placed 
in  the  windows.5  But  a  tomb  is  not  a  building 
within  the  meaning  of  such  a  statute.6  A  building 
may  be  within  the  statutory  definition,  though  of  a 
sort  unknown  when  the  statute  was  passed.  Thus  a 
railroad  station  is  a  warehouse,  within  the  meaning 
of  a  statute  passed  before  the  time  of  railroads.7 

1  State  v.  Cooper,  16  Vt.  551. 

2  Com.  v.  Newell,  7  Mass.  245. 

3  State  v.  Bell,  29  Iowa,  316. 

4  Clark  c.  State,  69  Wis.  203. 
6  Grimes  v.  State,  77  Ga.  762. 

6  People  v.  Richards,  108  N.  Y.  137. 
T  State  v.  Bishop,  51  Vt.  287. 


252  CRIMINAL  LAW- 


CHAPTER   VIII. 

OFFENCES  AGAINST  PROPERTY. 


§  270.  Larceny. 

298.  Embezzlement. 

305.  False  Pretences. 

318.  Cheating. 


§  321.  Malicious  Mischief. 

324.  Recen  ing  Stolen  Goods 

329.  Forgery. 

336.  Counterfeiting. 


§  2G9.  The  common  law,  as  has  been  Been,1  did 
not  regard  every  interference  with  the  property  of 
another  as  criminal.  In  business  transactions,  each 
person  was  left  to  protect  himself.  It  was,  in  be 
sure,  a  crime  to  cheat  by  the  use  of  false  tokens, 
such  us  would  deceive  the  mosl  careful;  bul  ordi- 
nary cheating  by  lies  was  no1  criminal.  Tin-  only 
crime  againsl  property  of  any  importance  was  lar- 
ceny; and  this  concerned  not  the  title,  hut  the  pos- 
session, of  persona]  property. 

In  the  progress  of  society  and  trade,  other  similar 
offences  became  of  public  concern ;  and  statutes  were 
accordingly  passed  extending  the  crime  of  larceny  in 
all  directions. 

Thus  it  was  made  criminal  to  obtain  the  titl-  of 
property  by  false  pretences;  or  to  embezzle  property 
already  in  the  offender's  possession.  Malicious  in- 
jury to  property,  without  disturbing  the  possession, 
was  made  punishable;  and,  finally,  certain  injuries 
to  real  property  were   punished  as  similar  injuries  to 

1  Ant,  ,  §  17. 


LARCENY.  253 

personal  property  had  been.  Further,  protection 
was  afforded  by  punishing  one  who  received  stolen 
goods  knowingly. 

Besides  larceny,  there  was  an  important  common 
law  crime  which  affected  property.  This  was  for- 
gery, which,  together  with  its  special  form  of  coun- 
terfeiting, was  a  common  and  important  crime  in 
the  Middle  Ages. 

LARCENY. 

§  270.  Larceny  is  commonly  denned  to  be  the  felon- 
ious taking  and  carrying  away  of  the  personal  goods 
of  another.1  Notwithstanding  the  frequency  of  the 
offence,  neither  law  writers  nor  judges  are  entirely 
agreed  on  its  exact  definition,  and,  as  in  case  of 
"assault,"  it  is  still  a  matter  of  debate.2  It  seems 
to  be  agreed,  however,  that  the  definition  given 
above  is  accurate,   so  far  as  it  goes. 

Formerly,  larceny  was  either  petit,  that  is,  larceny 
of  property  the  value  of  which  did  not  exceed  the 
sum  of  twelve  pence ;  or  grand,  that  is,  larceny  of 
property  the  value  of  which  exceeded  that  sum;  a 
distinction  which  was  of  consequence  only  as  deter- 
mining the  degree  of  punishment,  grand  larceny  be- 
ing punishable  with  death,  while  petit  larceny  was 
only  punishable  by  fine  and  imprisonment.  Now, 
however,  as  no  larceny  is  punishable  with  death, 
the  distinction  is  practically  done  away  with.  Still, 
the  value  of  the  property  at  the  present  day  deter- 
mines, to  some  extent,  the  degree  of  punishment  to 
be  inflicted  for  the  commission  of  the  offence,  and 

1  4  Bl.  Com.  229.  2  2  Bish.  Cr.  Law,  §  758  and  note. 


054  CRIMINAL   LAW. 

also  the  jurisdiction  of  the  tribunal  which  is  to  take 
cognizance,  and  hence  continues  to  be  a  matter 
material   to  be  stated  in  the  indictment. 

Larceny  is  also  simple,  or  plain  theft,  without  any 
circumstances  of  aggravation;  or  compound,  usually 
termed  aggravated  larceny,  or  larceny  accompanied 
by  circumstances  which  tend  to  increase  the  heinous- 
ness  of  the  offence,  as  larceny  from  the  person  or 
larceny  from  the  house,  taking  property  from  un- 
der the  protection  of  the  person  or  house  being 
justly  considered  as  indicating  a  greater  degree  of 
depravity  in  the  thief  than  the  taking  of  the  same 
articles   when   not    under  such    protection. 

§  11\.  Personal  Goods.  —  Such  property  only  is  the 
subject  of  larceny  at  common  law  as  is  properly  de- 
scribed as  "goods  and  chattels. "  As  soon  as  prop- 
erty is  reduced  into  the  form  of  a  chattel,  and  so  long 
as  it  retains  that  form,  it  may  be  stolen.  Thus  the 
milking  a  cow  and  the  plucking  of  wool  from  a  sheep 
nre  larcenies  of  the  milk  and  wool.1  So  turpentine 
which  hash-en  collected  from  a  tree,-  illuminating 
-•as  drawn  from  a  pipe  through  which  it  is  trans- 
mitted.'- or  water  in  the  same  condition.1  ice  col- 
lected in  an  ice-house,5  a  key  in  the  lock  of  a  door,6 
a  coffin,7  and  the  <_rrave-e  lot  lies  in  which  a  person  is 
buried,8  are  all  subjects  of  larceny:  hut   not  a  dead 

i  Rex  v.  Pitman,  2  C.  X  1'.  4-23. 

-  si;ti.'  v.  Moore,  M  [red.  (X.  C.)  70. 

»  Com.  v.  Shaw,  4  All.  (Mass.)  308;  Hutchison  t>.  Com.,  82  Pa.  472. 

rens  v.  <  I'Brien,  11  Q   B.  1>-  21. 
6  Ward  i\  People,  ::  Hill  (N.  V.)  395. 
c  Hoskins  r.  Tarrence,  5  Blackf.  dial.)  417. 
'  State  v   Doepke,  68  Mo 
8  Wbnson  v.  Sayward,  13  Pick.  (Mass.)  402. 


LARCENY.  255 

body,1  for  it  is  not  property.  The  dead  body  of  a 
domestic  animal  may,  however,  be  stolen.2  In  short, 
all  goods  and  chattels  reduced  to  possession  and  not 
abandoned  —  such  as  can  be  said  to  be  the  present 
property  of  some  owner  at  the  time  of  the  taking  — 
may  be  subject  matters  of  larceny.  There  can  be  no 
larceny  of  abandoned  property.3 

Upon  the  ground  of  non-reduction  to  possession, 
sea-weed  found  floating  on  the  shore  between  high 
and  low  water  mark  cannot  be  claimed  as  belonging 
to  the  owner  of  the  fee  between  high  and  low  water 
mark,  and  it  is  no  larceny  to  take  it.4 

§  272.  Instruments  in  Writing.  —  When  a  paper  con- 
tains writing  which  is  of  itself  valuable,  as,  for  in- 
stance, a  promissory  note,  bond,  mortgage,  policy  of 
insurance,  or  other  chose  in  action  or  muniment  of 
title,  the  character  of  chattel  which  the  paper  for- 
merly had  is  merged  in  its  far  more  important  char- 
acter of  written  obligation,  and  it  is  held  to  be  no 
longer  a  chattel.  Written  obligations  are  therefore 
not  subjects  of  larceny  at  the  common  law.5 

A  written  instrument  which  does  not  contain  an 
operative  obligation  still  remains  mere  written  paper, 
and  is  therefore  a  chattel  and  the  subject  of  larceny.6 

1  2  East  P.  C.  652. 

2  Regina  v.  Edwards,  13  Cox  C.  C.  384. 
*  Ibid. 

4  Regina  v.  Clinton,  Ir.  Rep.  4  C.  L.  6.  See  also  Com.  v.  Sampson, 
97  Mass.  407. 

5  Regina  v.  Powell,  5  Cox  C.  C.  396;  Calye's  Case,  8  Co.  33  a; 
Regina  v.  Green,  6  Cox  C.  C.  296  ;  Payne  v.  People,  6  Johns.  (N.  Y.) 
103;  United  States  v.  Davis,  5  Mason  (C.  Ct.)  356;  State  v.  Wilson, 
3  Brev.  (S.  C.)  196. 

6  Rex  v.  Walker,  1  Moo.  C.  C.  155. 


256  CRIMINAL   LAW. 

Such   is  a   written  obligation  which  has  been   per- 
formed, like  a  cancelled  check,1  or  a  deed  nol  yet 

delivered.2 

In  the  absence  of  statutes,  llic  courts  of  this  coun- 
try have  been  inclined  to  follow  the  common  law. 
P.ut  statutes  here,  as  also  indeed  in  England,  have 
generally  interposed,  and  made  nol  only  goods  and 
chattels,  as  by  the  common  law,  bul  also  choses  in 
action  and  muniments  of  title,  whether  they  savored 
of  realty  or  not,  and  in  fad  almost  everything  which 
constitutes  personalty  in  contradistinction  to  the 
realty,  subject  matters  of  larceny.  Indeed,  in  ninny 
if  not  most  of  the  States  the  felonious  taking  of 
parts  of  the  realty  may  be  indicted  as  larceny. 

^  -To.  No  Larceny  of  Real  Estate.  —  At  comm  in  law- 
there  could  he  no  larceny  of  the  realty,  or  any  pari 
of  it  not  detached.  Only  chattels  could  he  the  sub- 
ject of  larceny,  and  these,  with  few  limitations,  might 
he.  Deeds  of  rea  1  estate  were  regarded  as  so  "savor- 
ing of  the  realty  "  as  nol  to  be  subjects  of  larceny.8 

§  274.  Wild  Animals,  in  a  state  of  nature,  are  not 
subjects  of  larceny;  hut  when  such  of  them  ;is  are  lit 
for  food,  or  for  producing  property,  have  been  re- 
claimed, or  brought  into  control  and  custody,  so  th.it 
they  can  be  fairly  said  to  be  in  possession,  they  then 
become  property,  and  may  he  stolen.  Bees,4  pea- 
fowl,6 doves,6  oysters,6  when  reduced  t<»  possession, 

1  Regina  o.  Watts,  i  Cox  C.  C.  336. 

2  People  v.  Stevens,  :ss  Hun  (\.  V.)  62. 

3  1  Hawk.  P.  C  ill':   Rex  v.  Westbeer,  1  Leach  C.  C.  (4th  cd.)  12. 

4  state  /•.  Murphy,  8  Blackf.  (Ind.)  498. 
6  Com.  v.  Beaman,  8  Clray  (Mass  i  497. 

6  Com.  v.  Chace,  9  Pick  (Mass.)  15;   Rex  v.  Brooks,  4  C.  &  P.  181. 

7  State  v.  Taylor,  3  Dutch.  (N.  .J  )  1 17. 


LARCENY.  257 

belong  to  this  category.  And  so,  doubtless,  would 
fish  be,  if  caught  and  kept  in  an  artificial  pond,  as 
they  certainly  are  if  captured  for  food  or  for  oil.1  So 
if  wild  animals  fit  for  food  are  shot,  and  thus  reduced 
to  possession,  they  become  subjects  of  larceny ; 2  but 
chasing,  without  capture,  gives  no  right  of  property.3 
And  where  young  partridges  are  reared  from  eggs 
under  a  hen,  they  are  subjects  of  larceny  so  long  as 
they  continue  reclaimed.4 

But  dogs,  cats,  foxes,  bears,  and  the  like,  ferce 
naturce,  were  not  by  the  common  law,  and  are  not  in 
this  country,  subjects  of  larceny,  unless  by  some 
statute  they  are  made  so,5  or  unless  by  the  bestowal 
of  care,  labor,  and  expense  upon  them,  or  some  part 
of  them,  they  have  by  that  treatment  acquired  value 
as  property,  as  by  being  stuffed  or  skinned.6  And  it 
has  been  generally  held  that,  though  they  may  by 
statute  become  property  and  subjects  of  a  civil  ac- 
tion, and  liable  to  taxation,  they  are  not  subjects  of 
larceny.7  Otherwise  in  New  York,8  where  it  is  held 
that,  under  a  statute  punishing  the  stealing  of  the 
"  personal  property  "  of  another,  the  larceny  of  a  dog 
is  punishable. 

1  Taber  v.  Jenny,  1  Sprague,  315. 

2  Regina  v.  Townley,  12  Cox  C.  C.  59. 

3  Buster  v.  Newkirk,  20  Johns.  (N.  Y)  75. 
*  Regina  v.  Shickle,  L.  R.  1  C.  C.  158. 

5  2  Bl.  Com.  19.3;  Norton  v.  Ladd,  5  N.  H.  203;  Ward  v.  State, 
48  Ala.  161  ;  Rex  v.  Searing,  R.  &  R,  350. 

6  State  v.  House,  65  N.  C  315 ;  Regina  v.  Gallears,  1  Den.  C.  C.  501. 

7  Norton  v.  Ladd,  ubi  supra  ;  Warren  v.  State,  1  Greenl.  (Iowa)  106 ; 
State  v.  Lymus,  26  Ohio  St.  400;  State  v.  Holder,  81  N.  C.  527. 

8  People  v.  Maloney,  1  Parker  C.  C.  503 ;  People  v.  Campbell,  4 
Parker  C.  C.  386  ;  Mullaly  v.  People,  86  N.Y.  365.  See  also  Haywood 
v.  State,  41  Ark.  479. 

17 


258  CRIMINAL   LAW. 

§  27-").  Conversion  into  Chattels  by  Severance  from  Re- 
alty or  by  Killing. —  [f  portions  of  the  realty  become 
detached,  not  by  natural  causes,  as  blinds  from  a 
house.1  or  a  nuggel  of  gold  from  the  vein,2  they  may 
become  the  subject  of  larceny,  unless  the  detachmenl 
or  severance  be  part  and  parcel  of  the  acl  of  taking,8 
in  which  case  the  taking  is  but  a  trespass, — "a 
subtlety  in  the  Legal  notions  of  our  ancestors."4 

It  was  formerly  held  thai  a  day  must  elapse  be- 
tween the  severance  and  the  taking  in  oi-der  to  con- 
stitute larceny;  but  it  is  now  more  reasonably  Laid 
down  that  the  lapse  of  time  between  the  aid  of  sever- 
ance and  the  act  of  taking  need  be  only  so  long  as  is 
necessary  to  make  the  two  acts  appreciably  distinct, 
and  the  latter  successive  to  the  former/"' 

A  difficult  question,  however,  remains;  namely, 
what  is  necessary  in  order  to  make  the  acts  of  sever- 
ance and  taking  distinct.  The  mere  fact  that  there 
are  physically  two  acts  is  not  enough.  There  must 
be  something  which  will  give  an  intervening  poss 
sion  to  the  owner  of  the  soil;  otherwise,  there  is  no 
taking  oui  of  the  owner's  possession,  for  he  has  had 
no  possession  of  the  chattel  as  an  article  of  persona] 
property  prior  to  its  severance  from  the  realty.  It 
the  owner,  or  a  servant  for  him.  takes  possession  of 
the  goods  after  severance,  any  sul>se<pient    taking  is 

i  Regraa  >•■  Woxtley,  l  Pen.  C.  C.  162. 

"-  Stale  v.  Burt,  64  N.  0.  f>10;  State  V.  IVrryman.  S  W\.  262;  S.  C. 
and  note,  l  Green's  Cr.  Law  Rep.  335. 

Ri  gina  w.Townley,  I..  R.  l  C.C.  315  :  -.  c   12  CoxC.C.  59 ;  State 
V.  Hall,  5  Harr.  (Del.)  492. 

4  4  Bl  Com.  232.    See  People  >•.  Williams.  35  Cal  671. 

b  People  v.  Williams.  35  Cal.  071  ;  State  i>.  Berryman,  8  Nev.  2f>2  ; 
Jack.-.. 11  i\  State,  11  <  >hio  St.  104. 


LARCENY.  259 

no  doubt  larceny.  If  there  is  mere  lapse  of  time,  it 
must,  in  order  to  justify  conviction,  be  long  enough 
for  the  jury  to  find  that  possession  has  vested  in  the 
owner.  No  doubt,  such  lapse  of  time  as  would  indi- 
cate an  abandonment  by  the  wrongdoer  of  his  inten- 
tion to  take  the  chattels  would  be  enough;  and  if 
the  chattels  were  so  left  on  the  owner's  land  that 
the  wrongdoer  lost  the  power  of  control  of  them,  the 
possession  would  rest  in  the  owner,  and  a  subsequent 
taking  would  be  larceny.  But  where  the  possession 
of  the  wrongdoer  is  continuous  from  the  time  of  sev- 
erance to  the  time  of  taking  there  is  no  larceny.1 

The  same  principles  apply  where  wild  animals 
are  reduced  into  possession  by  a  trespasser.  The 
property  in  such  animals  vests  in  the  owner  of  the 
soil,2  but  the  trespasser  who  takes  them  is  not  guilty 
of  larceny  unless  the  possession  vested  in  the  owner 
before  the  taking.  If  the  trespasser  conceals  the 
animals  on  the  land  for  a  short  time  before  removing 
them,  he  is  not  guilty  of  larceny  when  he  takes  them 
away. 3 

§  276.  Value.  —  The  goods  must  be  of  some  value, 
else  they  cannot  have  the  quality  of  property.  The 
common  law  held  bills,  notes,  bonds,  and  choses  in 
action  generally,  as  of  no  intrinsic  value,  and  there- 
fore not  subjects  of  larceny.4  Now,  by  statute,  most 
of  the  old  limitations  and  restrictions  are  done  away 
with.     Many   articles    savoring   of   the    realty,    and 

1  Regina  v.  Foley,  26  L.  R.  Ire.  299;  s.  c.  17  Cox  C.  C.  142.  See 
especially  the  dissenting  opinion  of  Palles,  C.  B. 

■  Blades  v.  Iliggs,  11  H.  L.  C.  621. 

3  Regina  v.  Townley,  12  Cox  C.  C.  59;  Regina  v.  Petch,  14  Cox 
C.  C.  116. 

1  4  Bl.  Com.  234 ;  ante,  §  272. 


2G0  CKIMINAL  LAW. 

most  if  not  all  choses  in  action,  are  made  subjects  of 
Larceny.  The  value  may  be  very  trifling,1  yel  qo 
doubt  must  be  appreciable,2  though  perhaps  not  ne- 
saril}  equal  to  the  value  of  the  smallest  current 
coin.3  It  has  hern  held,  however,  in  Tennessee, 
that  the  value  of  a  drink  of  whiskey  is  too  small 
to  lay  the  foundation  for  a  complaint  for  obtaining 
goods  by  false  pretences,  upon  the  ground  that  the 
severity  of  the  penalty  shows  that  the  legislature 
could  not  have  intended  that  the  statute  should  apply 
to  so  trivial  an  act.4 

§  277.  Taking  and  carrying  away.  —  The  taking  and 
carrying  away  which  constitute  larceny  must  be  the 
actual  caption  of  the  property  by  the  thief  into  his 
possession  and  control,  and  its  removal  from  the 
place  where  it  was  at  the  time  of  the  caption.  The 
possession,  however,  need  be  but  for  an  instant,  and 
the  removal  need  extend  no  further  than  a  mere 
change  of  place.  Thus,  if  a  horse  hi'  taken  in  one 
pari  of  a  field  and  led  to  another,  the  taking  and 
carrying  away  are  complete;  or  if  goods  he  removed 
from  one  part  of  a  house,  store,  or  wagon  to  another.5 
or  if  money  in  a  drawer  or  in  the  pockel  of  a  person 
hi'  actually  lifted  in  the  hand  of  the  thief  from  its 
place  in  tin'  drawer  or  pocket,  though  not  withdrawn 
from  the  drawer  or  pocket,  and  though  dropped  or 
returned  on  discovery  to  the  place  from  which  it 
was   lifted  or  taken,  after  a  merely  temporary  pos- 

1  People  v.  Wiley,  3  Hill  (N.  Y.)  194. 

2  Pa-  ne  r.  People,  G  Johns.  (N.  V  )  103. 
»  Regina  v   Bingley,  5  C  &  P.  602. 

4  Chapman  v.  State,  2  Head  (Tenn.)  36. 

6  Johnson  v.  People,  4  Denio  (X.  V  )  $64 ;  State  v.  Craige,  89  N.  C. 
475;  State  v.  Gazell,  30  Mo.  92. 


LARCENY.  261 

session,  however  brief,1  —  the  larceny  is  complete. 
The  lifting  of  a  bag  from  its  place  would  be  a  lar- 
ceny,2 while  the  raising  it  up  and  setting  it  on  end, 
preparatory  to  taking  it  away,  would  not.3 

Taking  ordinarily  implies  a  certain  degree  of 
force,  such  as  may  be  necessary  to  remove  or  take 
into  possession  the  articles  stolen;  but  the  entice- 
ment or  toling  away  of  a  horse,  or  other  animal,  by 
the  offer  of  food,  is  doubtless  as  much  a  larcenous 
taking  as  the  actual  leading  it  away  by  a  rope  at- 
tached.4 So  taking  goods  from  an  automatic  slot 
machine  by  dropping  into  it  a  brass  disk  is  larceny.5 
So  taking  by  stratagem,  or  through  the  agency  of  an 
innocent  party,  or  by  a  resort  to  and  use  of  legal 
proceedings,  whereby,  under  forms  of  law,  possession 
is  got  by  a  person,  with  the  intent  of  stealing,  is 
a  sufficient  taking  to  make  the  act  larcenous.6  In 
such  cases  the  fraud  is  said  to  supply  the  place  of 
force.  So  it  is  larceny  to  take  gas  by  tapping  a  gas- 
pipe  and  allowing  the  gas  to  flow  to  one's  burner 
without  passing  through  the  meter.7 

§  278.  Obtaining  of  Title. — The  law  holds,  somewhat 
inconsistently,  that  if  possession  only  be  obtained 
by  fraud  the  offence  is  larceny,  but  if  possession  and 

1  Eckels  v.  State,  20  Ohio  St.  508;  Com.  v.  Luckis,  99  Mass.  431  ; 
Harrison  v.  People,  50  N.  Y.  518 ;  State  v.  Chambers,  22  W.  Va.  779. 

2  Rex  v.  Walsh,  1  Moo.  C.  C  14. 

3  Cherry's  Case,  2  East  P.  C.  556  ;  State  v.  Jones,  65  N.  C.  395. 

*  State  v.  Whyte,  2  N.  &  McC.  (S.  C.)  174;  State  v.  Wisdom, 
8  Porter  (Ala.)  511. 

5  Regina  v.  Hands,  16  Cox  C.  C.  188. 

6  Rex  i'.  Summers,  3  Salk.  194;  Com.  v.Barry,125  Mass.  390;  Regina 
v.  Buckmaster,  16  Cox  C  C.  339 ;  Regina  v.  Solomons,  17  Cox  C.  C.  93. 

1  Com  v.  Shaw,  4  Allen  (Mass  )  308 ;  Regina  v.  Firth,  L.  R.  1  C.  C. 
172 ;  Regina  v.  White,  6  Cox  C.  C.  213. 


■2Cy2  CRIMINAL   LAW. 

a  title  to  the  property  be  obtained  by  fraud,  il  is  not, 
as  the  fraud  nullifies  the  consenl  to  the  taking,  but 
no1  the  consent  that  the  title  should  pass.1  And 
this  inconsistency  arises  out  of  the  doctrine  generally 
received  that  trespass  is  a  necessary  ingredient  in 
larceny,  and  while  a  man  may  be  a  trespasser  who 
holds  goods  by  a  possession  fraudulently  obtained,  he 
cannot  be  a  trespasser  by  holding  goods  by  a  title 
fraudulently  obtained.2  The  consenl  of  the  owner, 
procured  by  fraud,  that  he  shall  have  title,  takes  the 
case  out  of  the  category  of  Larceny.  But  if  by  the 
same  fraud  the  possession  and  title  to  goods  are  ob- 
tained from  a  servant,  agent,  or  bailee  of  the  owner, 
who  has  no  right  to  give  either  possession  or  title, 
as  where  a  watch  repairer  delivers  the  watch  to  a 
pel's  hi  who  personates  the  owner,  it  is  larceny.8     It 

is   difficult  tO  see,   except    upon    the    technical    -'round 

above  stated,  why  a  title  procured  by  fraud  is  any 
more  by  consent  of  the  owner  than  a  possession  so 
procured.  The  distinction  is  a  source  of  confusion, 
not  to  say  a  ground  of  reproach.4 

It  follows,  therefore,  that  in  case  of  larceny  by 
trick,  the  question  is  whether  or  not  the  owner  in- 
tended to  pass  title;5  and  in  case  of  larceny  of 
goods  in  custody  of  a  servant,  whether  the  servant 
had  the  power  of  passing  title.'    and   intended  to  do 

i   Regina  v  Prince,  L.  R.  l  C.  C.  150. 
-  See  2  Bish.  Cr.  Law,  §§  sos-812. 

3  Ibid.  ;  Cmiii.  v.  <  IoIHub,  12  Allen  (Mnss.)  181. 

4  Fur  the  distinction  between  larceny  and  obtaining  money  by 
false  pretences,  see  post,  §  317,  and  Loomie  v.  Peopli  .  67  N.  V   322, 

5  Regina  >■.  Bnnce,  l  !•'.  &  V  .v.':;  ;  Regina  v.  Buckmaster,  16  <'<>x 
C  c  339  ;   Regina  v.  Middleton,  L.  R.  •-'  C.  C.  38. 

•  Regina  v  Prince,  L.  R.  1  C.  C.  130;  Regina  v.  Webb,  5  Cox 
C.  C.  L54. 


LARCENY.  263 

so.1  For  of  course,  if  the  servant  is  tricked  into 
giving  up  the  goods  without  intending  to  pass  title 
or  possession,  there  is  larceny. 

In  Iowa,  and  perhaps  other  States,  the  rule  that 
there  is  no  larceny  where  there  is  no  trespass,  and 
no  trespass  where  there  is  consent  obtained  by  fraud, 
has  been  abrogated  by  statute ; 2  and  in  Tennessee  it 
is  said  that  the  fraud  constitutes  a  trespass,  such  as 
it  is.3 

§  279.  Taking  of  Custody  merely.  —  Where  one  takes 
the  custody  of  goods  merely,  as  distinguished  from 
possession,  the  crime  of  larceny  cannot  be  com- 
mitted. So  where  one  moves  the  goods  from  one 
portion  to  another  of  the  owner's  shop,  in  order  that 
they  may  be  more  easily  stolen,  it  is  not  larceny,  for 
no  possession  is  taken.  This  question  will  be  more 
fully  considered  later.4 

§  280.  Taking.  Finding  Lost  Property.  —  Lost  prop- 
erty found  and  appropriated  may,  under  certain  cir- 
cumstances, be  said  to  be  taken.  Thus,  if  a  person 
find  a  piece  of  personal  property,  about  which  there 
are  marks  or  circumstances  which  afford  a  clue  to 
the  ownership,  and  from  which  he  has  reason  to 
believe  that  inquiry  might  result  in  ascertaining  the 
ownership,  and  immediately  upon  finding,  without 
inquiry,  appropriate  it  to  his  own  use,  this  is  a  tak- 
ing sufficient  to  constitute  the  act  larceny.  On  the 
other  hand,  if  there  be  no  mark  or  circumstance  giv- 
ing any  reason  to  suppose  that  the  ownership  can  be 

1  Eegina  v.  Robins,  6  Cox  C.  C.  420;  Regina  v.  Little,  10  Cox 
C.  C.  559. 

2  State  v.  Brown,  25  Iowa,  561. 

8  Defrese  v.  State,  3  Heisk.  53.  See  also  State  v.  Williams,  35  Mo.  229. 
4  Post,  §  289. 


264  CRIMINAL   LAW. 

ascertained,  an  immediate  appropriation  is  not  a 
taking  which  is  larcenous.1  l(  there  is  no!  a  pur- 
pose at  the  time  of  finding  to  appropriate,  a  subse- 
quent appropriation  will  no1  amount  to  larceny.2 

§  281.  Property  left  by  Mistake.  —  It  is  important  to 
observe  the  distinction  between  lost  and  mislaid 
property.  In  the  latter  case,  as  where  a  customer 
unintentionally  leaves  his  pur.se  upon  the  counter  of 
a  store,:;  and  the  trader  takes  it  and  appropriates 
it  to  his  own  use  without  knowing  whose  it  is,  or 
a  passenger  unintentionally  leaves  his  baggage  at 
a  railway  station,4  and  a  servant  of  the  company, 
whose  duty  it  is  to  report  the  fact  to  his  superior, 
neglects  to  do  so.  and  appropriates  the  baggage  to 
his  own  use,  the  act  in  each  ease  is  larceny,  because 
there  was  a  likelihood  that  the  owner  would  call  for 
the  property,  and  therefore  in  aeither  case  at  the 
time  of  appropriation  was  the  property  strictly  lost 
property.  There  was  a  probability  known  to  the 
taker  in  each  case  that  the  owner  might  he  found, 
i.  e.  would  appear  and  claim  property  which  lie  had 
by  mistake  left.  So  if  a  person  convert  to  his 
own  use  property  left  with  him  by  mistake,  and, 
as  lie  knows,  intended  for  another  person,  this  is 
larcenj ."' 

§  282.  Property  delivered  by  Mistake.-  Where  one 
receives  from  another  —  the  deliverv  being  by  mis- 

1  Com.  v. Titus,  116  Mass.  42;  s. c.  1  Am,Cr  Repts.  (Hawley),  416 
and  note  :  Reed  v.  State,  8  Tex.  App.  40;  Regiua  v.  Thnrborn,  1  Deu. 
c  c  387 

-  II, id  ;  Baker  184. 

>  Regiua  v.  West,  6  Cox  C.  C.415;  Lawrence  v.  State,  1  Humph. 
(Tenn.)  228. 

*  Regina».  Pierce,  6  Cox  C.  C.  117. 

*  Wblfstein  v.  People,  6  Hun  (N.  Y.)  121. 


LARCENY.  265 

take  and  therefore  unintentional  —  a  sum  of  money 
or  other  property,  and  the  receiver  at  the  time  knows 
of  the  mistake,  yet  intends  to  keep  it  and  to  appro- 
priate it  to  his  own  use,  this  is  a  taking  sufficient  to 
constitute  larceny;  as  where  a  depositor  in  a  savings 
bank,  presenting  a  warrant  for  ten  dollars,  receives 
through  a  mistake  of  the  clerk  a  hundred  dollars. 1 
But  if  the  receiver  did  not  know  of  the  mistake  at 
the  time  of  taking,  his  intention  to  appropriate, 
formed  later,  will  not  make  the  act  larceny.2  This 
latter  principle  would  seem  to  apply  where  one 
receives  a  coin  of  large  value  by  mistake  for  one  of 
smaller  value,  and  afterwards,  on  discovering  the 
mistake,  appropriates  it.  This  should  not  be  held 
larceny.3 

§  283.  Taking.  Servant.  —  Where  property  is  taken 
by  a  servant,  in  whose  custody  it  is  placed  by  the 
master,  as  of  goods  in  a  store  for  sale,  or  of  horses  in 
a  stable  for  hiring,  or  of  securities  of  a  banker,  or 
of  money  in  a  table,  all  the  property  being  still  in 
the  possession  of  the  owner  by  and  through  the  ser- 
vant, the  act  of  taking  by  the  servant  is  larceny. 
The  servant  has  custody  merely  for  the  owner,  who 
has  the  possession  and  property.4 

If,  however,  the  servant  receives  goods  for  his 
master  from  a  third  person,  he  is  held  to  get  the  pos- 

1  Regina  v.  Middletou,  L.  R.  2  C.  C.  38  ;  s.  c.12  Cox  C.  C.  260,  417  ; 
1  Green's  Cr.  Law  Rep.  4. 

-  Regina  v.  Flowers,  16  Cox  C.  C.  33. 

3  Bailey  v.  State,  58  Ala.  414.  See,  however,  Regina  v.  Ash  well, 
16  Cox  C.  C.  1,  where  the  English  judges  were  equally  divided  on 
the  question. 

4  Com.  v.  Berry,  99  Mass.  428  ;  Marcus  v.  State,  26  Ind.  101 ;  State 
v.  Jarvis,  63  N.  C.  556;  People  v.  Belden,  37  Cal.  51. 


266  CRIMINAL  LAW. 

3ion,  and  nol  merely  the  custody,  and  an  appro- 
priation of  the  goods  is  therefore  nol  larceny.1  But 
it'  one  servant   receives  goods  from  another  servant 

having  custody,  only  custody  passes;  the  g Ls  are 

still  in  the  master's  possession,  and  the  servant  may 
steal  them.2 

Still  further,  if  the  servant  who  has  taken  posses- 
sion of  the  goods  puts  them  in  the  place  appropriated 
for  their  reception  by  the  master,  the  latter  comes  at 
once  into  possession,  and  the  servant  taking  the 
Is  thereafter  is  guilty  of  larceny.  Such  is  the 
ease  where  money  is  put  by  a  clerk  into  the  till,  or 
documents  into  the  file  provided  for  them;3  and  so 
where  a  servant,  sent  with  a  cart  to  get  goods  of  the 
master,  has  put  them  in  the  cart.1  But  where  the 
goods  are  put  into  the  master's  receptacle,  not  in 
the  course  of  employment,  hut  merely  as  a  place 
of  temporary  concealment  until  they  can  finally  lie 
taken  away,  the  possession  is  still  in  the  servant, 
and   a    taking   is  not    larceny.5 

§284.  Taking.  Bailee. —  The  appropriation  by  a 
carrier,  however,  or  other  bailee,  of  property  of  which 
lie  has  possession,  and  in  which  he  has  therefore  a 
quasi  property,  is  embezzlement,  and  not  larceny.6 
The  possession  of  a  servant  is  different  from  that  of 
a  bailee.  That  of  the  former  is  mere  custody,  while 
that  of  the  latter  is  a  real  possession.      Thus,  as  has 

1  Regina  <■.  Masters,  i  Den   C.  C.  '332. 

'-'  Rex  v.  Murray,  1  Moo.  C.  C.  276. 

3  Regina  v.  Watts,  2  Den.  C  C.  U. 

1  Regina  v.  Reed,  23 :  L.  J   w.  s.  M.  C.  25;  s.  c.  Dears.  C.  C.  257. 

30  N.  R.  Rep.  364  (Mass.). 
8  People  v.  Dalton,  15  Wend.  (N.Y.)  581  ;  Regina  v.  Thristle,  3  Cox 
C.  C. 


LARCENY.  267 

been  seen,  money  in  the  till  is  in  the  possession  of 
the  master,  but  in  the  custody  of  the  clerk.  But 
where  property  is  delivered  to  another,  who  is  not 
his  servant,  to  be  kept,  the  possession  is  in  the  em- 
ployee as  a  trustee,  and  if  he  fraudulently  converts  it, 
it  is  embezzlement,  and  not  larceny.1 

But  it  has  been  held  that,  if  the  bailee  do  any  act 
which  violates  the  trust,  as  where  a  carrier  breaks 
open  a  package  delivered  to  him  for  transportation, 
and  abstracts  a  part  of  its  contents,  he  thereby  ter- 
minates the  bailment,  and  the  act  is  larceny.2 

§  285.  Taking.  Temporary  Delivery  upon  Conditions. 
—  If,  however,  the  property  be  delivered  merely  for 
a  temporary  purpose,  without  intention  to  part  with 
it  or  the  possession  except  upon  certain  implied 
conditions,  as  where  a  trader  hands  a  hat  over  his 
counter  to  a  customer  for  the  purpose  of  examination, 
and  the  customer  walks  off  with  it,  or  a  customer 
hands  to  a  trader  a  bill  out  of  which  to  take  his  pay 
for  goods  bought,  and  to  return  the  change,  and  the 
trader  refuses  the  change,  it  is  in  each  case  lar- 
ceny.3 The  possession  is  in  each  case  fraudulently 
obtained,  which  is  equivalent  to  a  taking  without  the 
consent  of  the  owner,  in  the  view  of  the  law.  If  the 
possession  be  fraudulently  obtained  with  intent  on 

1  State  v.  Farm,  05  N.  C.  317  ;  Ennis  v.  State,  3  Greene  (Iowa)  G7  ; 
Regina  v.  Pratt,  6  Cox  C.  C.  373. 

2  State  v.  Fairclough,  29  Conn.  47  ;  Nichols  v.  People,  17  N.  Y.  114  ; 
Com.  v.  Brown,  4  Mass.  580;  Rex  v.  Brazier,  Russ.  &  Ry.  337.  See 
also  Com.  v.  James,  1  Pick  (Mass.)  375,  and  a  valuable  note  of  Mr. 
Heard  to  the  same  case,  2  Bennett  &  Heard  Lead.  Cr.  Cas.  181. 

3  Com.  v.  O'Mnllcy,  97  Mass.  584;  People  v.  Call,  1  Demo  (N.  Y.) 
120;  Regina  v.  Thompson,  9  Cox  C.  C.  244.  See  State  v.  Hall,  76 
Iowa,  85. 


CRIMINAL    LAW. 

the  part  of  the  person  obtaining  it,  at  the  time  lie 
t,  to  convert  it  to  his  own  use  and  the  per- 
son parting  with  it  intends  to  part  with  his  pose 
sion  merely,  and  not  with  his  title  to  the  property, 
the  offence  is  larceny.1 

P  rhaps  it  might  justly  be  said  thai  in  such  cas 
the  possession  is  not  parted  with,  the  property  being 
in  such  proximity  to  the  owner  that  he  still  has  do- 
minion and  control  over  it.2 

In  a  recent  fendant  acted  as  attorney  for  A. 

in  buying  certain  land.  He  bought  it  for  $125,  but 
informed  A.  thai  the  price  was  $325,of  which  $10  was 
to  go  to  di  fendant.  Tin-  parti<  s  having  met,  A.  laid 
the  money  on  a  table ;  defendant  took  it  intothenexl 
room,  paid  th<'  seller  1125,  and  retained  the  balance. 
This  was  held  larceny;  and  it  was  said  thai  A.  never 
gave  up  tin-  possession  to  defendant,  even  though  the 
latter  had  a  righl  \<<  select  $10  and  keep  it.3 

§  286.  Taking  by  Owner. —  A  general  owner  may 
_  liltv  <»t'  larceny  of  his  own  goods,  it  at  the  tune 
of  taking  In-  has  no  right  to  their  possession, 
where  one  whose  property  has  been  attached  takes  it 
away  with  intent  to  deprive  the  attaching  creditor 
of  his  security,4  or  a  part  owner  of  property  in  the 
possession  of  another  tabs  it  feloniously.6 

i  Loomia  v.  People,  67  X.  7.322;   Hildebrand  v.  People,  56  N.  V. 
.104;  Rex  -'.  Roba  >n,  Rum  &  Ry.  413;  Com.  v.  Barry,  124  Mass.  325; 
Com.,  15  s-  &   R.  (Pa.)  93;   Farrell  v.  People,  16  111.  506; 
!  enn,  41  Conn.  5 
-  Hildebrand  v.  People,  ubi  sup  I  P.  C.  683. 

m.  v.  Lannan,  26  N.  E.  Ri  ;  153  Mast 

. .  in   Mass   3  12     S<  i    altto  Palmi  t  v.  People,  10 
(N.  Y.)  i  v.  Thompa  n   34  Cal.  671. 

.  ,-.  Wilkinson,  Ruas  Ri  gina  v.  Wi  bstei    I  Cos 

C.  C  13. 


LARCENY.  OQ9 

§  287.  Taking  by  Wife.  — The  wife  of  an  owner  of 
property  cannot  commit  larceny  by  taking  it  from 
her  husband's  possession,  even  if  she  is  about  to 
elope  with  an  adulterer,1  though  the  latter  might  be 
guilty;  for  a  wife  cannot  have  possession  of  property 
apart  from  her  husband.2 

§  288.  Intent  to  steal  Claim  of  Right.  —  The  taking 
must  also  be  felonious;  that  is,  with  intent  to  de- 
prive the  owner  of  his  property,  and  without  color  of 
right  or  excuse  for  the  taking.3  Therefore  a  taking 
under  a  claim  of  right,  if  the  claim  be  made  in  good 
faith,  however  unfounded  it  may  be,  is  not  larce- 
nous.4 But  a  custom  to  take  fruit,  as  from  boxes 
of  oranges  on  board  a  vessel  in  transitu^  is  neither 
good  in  itself,  nor  as  a  foundation  for  a  claim  oi 
right.5 

£  289.  Permanent  Taking.  —  The  intent  to  steal 
does  not  exist  unless  the  object  of  the  wrongdoer  is 
permanently  to  deprive  the  possessor  of  property  of 
his  present  interest  in  it.  If  the  purpose  is  only  a 
temporary  use.  the  owner's  rights  in  the  chattel  not 
being  permanently  infringed,  the  purpose  is  not 
Larcenous. 

The  distinction  is  clearly  brought  out  in  a  seines 
of  English  eases.  In  the  first,  a  workman  in  a  tan- 
nery was  paid  according  to  the  number  of  skins  be 

1  Retina  v.  Kenny,  2  Q.  B.  IV  807. 
-  Rex  v.  Willis.  lMoo.  C.  0.  375. 

3  Johnson  v.  State,  36  Tex,  375;  State  v.  Ledfbrd,  <",:  X.  C.  60; 

Re,c;in:*  v.  Holloway,  2  C.  &  K.  942:  State  r.  South.  4  Dutch.  (X.J.)  28. 

4  Severance  >■.  Carr.  43  X.  II.  65;  State  r.  Homes.  17  Mo.  379; 
Regina  o.  Halford,  11  Con  0.  0.  88;  People  ;•.  Carabin,  14  Cal.  438; 
Hall  r.  State,  M  Ga.  208  :   State  r.  Fisher,  70  N.  C.  78. 

5  Com.  t\  Doane,  1  Cush.  (Mass)  5. 


270  CRIMINAL  LAW. 

dressed.  Tie  took  a  number  of  dressed  skins  from 
tlir  master's  storehouse  and  banded  them  to  the  fore- 
man, in  order  to  secure  the  compensation  for  dress- 
ing them.     This  was  hold  not  to  be   larceny  of  the 

skins;  for  the  workman  never  evm  pretended  thai 
the  skins  were  nol  the  master's,  or  that  the  master 
had  not  an  immediate  right  to  the  possession.1  In 
the  second  case  a  workman  at  a  tallow  chandler's 
took  some  fat  from  the  storehouse  and  pu1  it  in  the 
scales,  pretending  that  it  had  been  brought  in  for 
sale.  Bere  the  intention  was  to  deprive  the  master 
of  all  his  right  in  the  fat,  and  that  he  should  procure 
a  ni  w  right  only  by  purchase;  and  it  was  therefore 
larceny.2 

According  to  this  distinction,  taking  a  chattel  to 
be  used  as  a  means  of  escape  and  then  left,3  or  for 
the  purpose  of  inducing  the  owner  to  follow  it 4  or  to 
refrain  from  leaving  the  house,0  or  to  facilitate  the 
commission  of  another  theft,  does  not  constitute  lar- 
ceny.'' Taking  property,  however,  with  a  design  to 
apply  it  on  a  note  due  to  the  taker  from  the. owner, 
is  depriving  the  owner  of  the  specific  property.'  So 
is  the  taking  of  a  railway  ticket,  with  intent  to  use 
it,  though  coupled  with  the  intent  to  return  it  after 
use.8     To  conceal  it  from  the  owner  until  the  latter 

1  Regina  v.  Holloway,  -T  Cox  C.  C.  241  ;  s.  c.  2  C.  &  K.  942.  See, 
contra,  Fort  v.  State,  82  Ala.  50. 

2  Regina  r.  Hull,  .3  Cox  C.  C.  245.  Ace.  Regina  r.  Manning,  G  Cox 
C.  C.  86. 

>  Stato  i;.York,  5  Harr.  (Del.)  493;  Ilex  v.  Phillips,  9  East  1'.  C.  662. 
4  Rex  >■.  Dickinson,  Rnss.  X:  l.'y.  420. 

6  Cain  r.  State,  21  Tex.  App.  662. 
'■  Rex  v.  Cramp,  l  C.  &  !'.  658. 

7  Coin.  v.  Stebbins,  8  Cray  (Mass.)  492. 

8  Regina  v.  Beecham,  5  Cox  C.  C.  181. 


LARCENY.  271 

shall  offer  a  reward  for  its  recovery,  or  to  sell  it  at 
a  reduced  price,  is  depriving  him  of  a  part.1  But 
simply  to  withhold  for  a  time  property  one  has  found, 
in  the  hope  of  a  reward,  is  not  larceny.2 

Taking  goods  of  another  in  order  to  pawn  them  is 
larceny,  even  if  the  intention  is  ultimately  to  redeem 
and  restore  them.3  A  man  who  takes  an  execution 
from  an  officer  who  is  about  to  levy  upon  his  goods, 
and  keeps  it,  under  the  mistake  that  he  can  thereby 
prevent  the  levy,  hopes  to  reap  an  advantage;  but 
such  an  act  is  no  more  larceny  than  the  taking  a 
stick  out  of  a  man's  hand  with  which  to  beat  him.4 

§  290.  Taking.  Concealment.  —  Although  the  tak- 
ing be  open,  and  without  secrecy  or  concealment,  it 
may  still  be  theft;  and  that  the  act  is  furtively  done 
is  only  evidence  of  the  criminal  intent.5  Yet  there 
is  undoubtedly  in  the  popular,  if  not  in  the  legal 
idea  of  theft,  — furtum,  —  an  element  of  secrecy  in 
the  taking.6  But  if  the  act  be  fraudulent,  and 
known  to  the  taker  to  be  without  right  or  against 
right,  it  is  immaterial  whether  the  taking  be  open 
or  secret.  Nor  does  it  seem  to  be  essential  that  the 
taker  should  be  animated  by  any  motive  of  mere 
pecuniary  gain.7  And  the  fraudulent  purpose  —  the 
element  without  which  there  can  be  no  theft,  the  act, 
in  the  absence  of  fraud,  being  only  a  trespass  —  must 
exist  at  the  time  of  the  taking.      The  taking  must  be 

i  Com.  v.  Mason,  105  Mass   163;  Berry  v.  State,  31  Ohio  St.  219. 
2  Regina  v.  Gardner,  9  Cox  C.  C.  253 ;  Micheaux  r.  State,  18  S.  W. 
Rep.  550 ;  s.  c.  30  Tex.  App.  660. 

a  Regina  v.  Trebilcock,  7  Cox  C.  C.  408. 

4  Regina  v.  Bailey,  L.  R.  1  C.  C.  347. 

5  State  r.  Term,  41  Conn.  590.  6  State  v.  Ledford,  67  N.  C.  60. 
7  Regina  v.  Jones,  1  Den.  C.  C.  188 ;  post,  §  291. 


o;o  CRIMINAL  LAW. 

with  a  fraudulent  intent.  The  taking  without  a 
fraudulenl  intent,  and  a  conversion  afterwards  with 
a  fraudulent  intent,  do  not,  in  general,  constitute 
Larceny.1 

It  is  held  in  some  eases,  however,  that  while,  if 
the  original  taking  be  rightful,  a  subsequent  fraudu- 
lent conversion  will  not  make  it  larceny,  yel  if  the 
original  taking  be  wrongful,  as  by  a  trespass,  it  will. 
Thus,  if  a  man  hires  a  horse  in  good  faith  to  go  to  a 
certain  place,  and  afterwards  fraudulently  converts 
him  to  his  own  use,  this  is  no  larceny.  If  he  takes 
the  horse  without  leave,  and  afterwards  fraudulently 
converts  him,  this  is  larceny.2  So  if,  under  color  of 
hiring,  he  gets  possession  with  intent  to  steal.3  And 
it  has  even  been  held  by  very  high  authority,  that  if 
possession,  without  intent  to  steal,  be  obtained  by  a 
false  pretence  of  hiring  for  one  place,  when  in  fad 
the  party  intended  to  go  to  another  and  more  distant 
place,  and  the  property  be  subsequently  converted 
with  a  felonious  intent,  this  is  larceny.4  So  if,  after 
a  hiring  and  completion  of  the  journey  without  felo- 
nious intent,  instead  of  delivering  the  horse  to  the 
owner,  the  hirer  converts  him  to  his  own  use.5  This 
case  proceeds  upon  the  ground  that  the  bailment  is 
terminated.      Upon  the  same  ground,  a  common  car- 

1  Wilson  v.  TVnplo.  39  X.  Y.  459 ;  State  v.  Shernier.  55  Mo.  83  ; 
P,ex  v.  Banks,  T>nss   &  l!y.  441. 

-  Com.  v.  White,  11  Cush.  (Mass  )  4S3 ;  Regina  v.  Riley,  Pearsley 
C.  C.  t  t't 

8  State  v.  Oorman.  2  Nott  &  McCord  fS.  C.)  90;  Stato  v  Wil- 
liams, 35  Mo.  229  ;  People  v.  Smith,  23  Cal.  280.  See  also  State  v. 
Fenn.  41  Conn.  590. 

*  Stat.'  r.  ( !oombs,  55  Mo  477. 

6  Regina  i>.  Baigh,  7  Cox  C.  C.  403. 


LARCENY.  273 

rier  who  breaks  open  a  package  committed  to  him 
for  transportation,  and  takes  to  his  own  use  a  portion 
of  the  contents,  thereby  puts  an  end  to  his  bailee- 
ship,  and  becomes  guilty  of  "larceny.1  And  it  may 
be  said,  generally,  that  a  bailee  who  receives  or 
gets  possession  with  intent  to  steal,  or  fraudulently 
converts  to  his  own  use  after  his  right  to  the  posses- 
sion as  bailee  has  terminated,  is  guilty  of  larceny. 
In  neither  case  does  he  hold  possession  by  consent  of 
the  owner.2 

§  291.  Taking  Lucri  Causa.  —  The  taking  need  not 
be  for  pecuniary  gain  or  advantage  of  the  thief,  if  it 
is  with  design  wholly  to  deprive  the  owner  of  his 
property.3  Logically,  the  taking  to  one's  self  the 
absolute  and  permanent  control  and  disposition  of 
the  property  of  another,  with  no  intention  of  return- 
ing it  to  him,  is  an  addition  to  the  property  of  the 
taker,  and  in  that  sense  necessarily  a  gain  or  advan- 
tage, without  reference  to  the  mode  of  control  or 
subsequent  disposition.  The  larceny  is  complete, 
and  is  not  the  less  a  larceny  because  it  is  committed 
as  a  step  in  the  accomplishment  of  some  other  act, 
criminal  or  otherwise.  It  was  formerly  laid  down, 
that  unless  it  appears  that  it  would  be  of  some  sort 
of  advantage,4  as  to  enable  the  offender  to  make  a 
gift,  or  to  destroy  evidence  which  might  be  used 
against  him,5  the  offence   would   more  properly  be 

i  State  ?•.  Faii-dough,  29  Conn  47. 

2  See  2  Bish   Cr.  Law,  §§  834,  835.     See  also  ante,  §  284. 

3  People  v.  Juarez,  28  Cal.  380;  Regina  v.  Jones,  1  Den.  C.  C.  188 ; 
Hamilton  v.  State,  35  Miss.  214. 

4  Regina  v.  White,  9  C.  &  V.  344. 

5  Eegina  v.  Jones,  1  Den.  C.  C.  188  ;  Regina  v.  Wynn,  1  Den.  C.  C 
365 ;  Rex  v.  Cabbage,  Russ.  &  Ry.  292. 

18 


274  CRIMINAL  LAW. 

malicious  mischief.1  Bn1  even  those  courts  which 
!  iid  down  the  rale  held  that  this  advantage  mighl  be 
of  a  very  trifling  character.  Thus,  it  was  held  in 
England,2  that  where  it  was  the  duty  of  a  Bervant  I  i 
take  such  beans  as  were  doled  out  to  him  by  another 
servant,  and  split  them  and  feed  them  to  the  horsi  s, 
and  the  former  clandestinely  took  a  bushel  of  the 
beans  and  fed  them  to  the  horses  whole,  whereby  he 
possibly  injured  his  employer's  horse,  and  saved 
labor  to  himself,  this  was  a  sufficient  taking  to 
constitute  larceny.  This  was  an  extreme  case  of 
doubtful  law,  and  it  was  immediately  changed  by 
statute/5 

But  by  the  better  view  there  is  no  need  of  the 
motive  of  gain  in  order  to  convict  of  larceny.  The 
permanent  injury  to  the  owner  is  enough.4 

£  292.  Ownership.  —  A  general  or  special  owner- 
ship by  another  is  suffcienl  to  sustain  the  allegation 
that  the  property  is  his.0     Even  a  thief  has  sufficient 

1  Retina  p.  Godfrey,  S  C.  &  P.  563  ;  People  v.  Murphy,  47  Cal.  103; 
State  u.  Hawkins,  8  Porter  (Ala.)  461. 

■-'  Rex  v   Morfit,  Russ.  &  Ry.  307  ;  Regina  v.  Privett,  2C.  &  K.  114. 

3  26  &  27  Viet.  c.  103,  §  1. 

*  Regina  p.  Guernsey,  l    F  *v.  P.  394;  Williams  v.  State,  52  Ala. 

411  ;  People  '•.  Juarez,  28  Cal.  .'5m);  Hamilton  u.  state,  35  Miss.  214; 

Warden  v.  State,  60  .Miss    638;  State  p.  Ryan,  12  STev.  401  ;  State  v 

Slingerland,  f'.i  Nev.   135;  State  p.  Davis.  38  N.  J.  L.  176;  States 

ra,  3  Strobh.  (S.  C.)  508.    8ee,cmtra,  Pence  p.  State,  L10  [nd.  95; 

Peoples.  W [ward,  31  Hun  i\.Y  |  57.     An  excellent  discussion  <>( 

the  question  maj  be  found  in  the  dissenting  opinion  of  Learned,  P,  .1  , 
in  the  last  case, 

6  Com.  p.  O'Hara,  LO  Gray  (Mass)  169;  Regina  o,  Bird,  9  C.  8  P 
44  ;  State  p.  Gorham,  55  X.  II.  152;  State  p.  Furlong,  19  Me.  225;  State 
p.  Mullen,  30  [owa,  203;  People  v  Bennett,  37  X  Y.  117;  State  » 
Williams.  2  Strobh.  (S  C.)  474;  United  States  p  Foye,  l  Curtis  C.  C. 
304  ;  Owen  v.  State,  6  Humph.  (Tenn.)  330. 


LARCENY.  275 

ownership  to  support  the  allegation  as  against  another 
thief.1 

§  293.  Larcenies  from  the  person,  from  a  vessel, 
and,  under  special  circumstances,  from  a  building, 
are  but  aggravated  forms  of  larceny,  of  statutory 
growth,  and  by  statutes  generally  similar,  but  in 
particulars  different,  are  specially  defined,  and  made 
specially  punishable,  and  arc,  so  far  as  the  larceny 
is  concerned,  to  be  tried  by  the  tests  heretofore 
stated.  They  are  sometimes  called  compound  lar- 
cenies, as  being  made  up  of  two  or  mure  distinct 
crimes,  —  as  in  case  of  larceny  from  the  person, 
which,  technically  at  least,  includes  an  assault  upon 
the  person,  — and  are  said  to  be  aggravated,  because 
it  indicates  a  higher  degree  of  depravity  to  take 
property  from  under  the  protection  of  the  person  or 
of  the  building,  than  to  take  the  same  property  when 
it  is  found  not  under  such  protection.  There  is, 
however,  the  violation  of  the  security  of  the  person 
and  of  the  building,  which  enhances,  in  the  estima- 
tion of  the  law,  the  gravity  of  the  offence.  But 
these  subdivisions  of  the  law  of  larceny  have  lie- 
come  so  general,  that  a  few  observations  will  be 
of  use. 

§  294.  Larceny  from  the  Person,  though  it  can  be 
perpetrated  only  by  force,  is  nevertheless  an  offence 
requiring  no  other  than  the  mere  force  of  taking  the 
thing  stolen,  and  is  distinguishable  from  robbery,  in 
that  the  latter  is  an  offence  compounded  of  two  dis- 
tinct offences,  — assault  and  larceny,  — the  assault 
being,  as  it  were,  preparatory  to  and  in  aid  of  the 

1  Ward  v.  People,  3  Hill  (N.  Y.)  395;  Com.  v.  Finn,  10S  Mass. 
466. 


276  CRIMINAL   LAW. 

larceny.1  If,  for  instance,  a  thief,  —  for  instance,  a 
pickpocket,  —  in  passing  another  person  snatches  a 
pocket-book  from  his  hand  or  from  his  pocket,  this  is 
larceny  from  the  person;  while  if  the  thief  knocks 
the  person  down  or  seizes  him,  and  then  lakes  the 
pocket-book  from  his  possession,  this  is  robbery.2 
Technically,  no  doubt,  larceny  from  the  person  in- 
volves an  assault,  Dill  it  is  the  mere  force  of  tak- 
ing the  thing.  In  robbery,  the  force  or  fear  is  prior 
to  the  larceny,  and  preliminary  to  and  distinct  from 
the  taking.3  And  a  thing  is  said  to  be  on  the  person 
if  it  is  attached,  as  a  watch  by  a  chain,  or  is  other- 
wise so  related  to  the  person  as  to  partake  of  its 
protection.4  We  have  already  seen  that  the  actual 
taking  of  a  thing  on  the  person  in  the  hand,  and 
removing  it  from  contact  or  connection  with  the 
person,  is  a  sufficient  taking.6 

§295.  Larceny  from  Building.  —  Taking  property 
in  or  from  a  building  is  not  necessarily  larceny  in 
a  building.  To  constitute  larceny  in  a  building,  the 
property  taken  must  he  in  some  sense  under  the  pro- 
tection of  the  building,  ami  not  under  the  eye  or  per- 
sonal care  of  some  one  in  the  building.6  Thus,  if  a 
pretended  purchaser,  having  go1  manual  possession 
of  a  watch  in  a  store  for  the  purpose  of  looking  at  it, 
leaves    the    store  with    the  watch,    he    is    not    guilty  of 

larceny  in  a  building.     The  watch,  having  been  de- 

1  4  Bl.  Cm.  243. 

-  Regina D.Walla, 2 C.&  K  214:  Com.  v.Pimond, 3Ciish.(Mass.)235. 
8  Rex  >■.  Harmon,  1   Hawk.  1'.  ('    (8th  ed  l  214,  Ji  7 ;   2  Robs,  on 
Crimes,  89. 

1  Regina  v.  Selway,  8  Cox.  C.  C  235     See  also  post,  §  295. 
6  Ante,  §  277.     See  also  Flynn  >■  State,  42  Texas,  301. 
'■  Rex  i"  Campbell,  2  Leach  C.  C  642. 


LARCENY.  277 

livered  into  his  custody  for  a  special  purpose,  cannot 
be  said  to  be  under  the  protection  of  the  building. 
And  even  though  it  had  not  been  so  delivered,  but 
had  been  merely  placed  on  the  counter  for  inspection, 
it  then  might  be  more  properly  said  to  be  under  the 
persona]  protection  of  the  owner,  than  that  of  the 
building.1  So  the  snatching  of  property  hung  out 
upon  the  front  of  a  store  for  the  purpose  of  attract- 
ing customers  is  not  larceny  from  a  building.  The 
goods  are  not  under  the  protection  of  the  building.2 
The  distinctions  are  very  fine.  Thus,  if  a  person 
on  retiring  to  bed  places  his  watch  upon  a  table  by 
his  bedside,  even  within  his  reach,  the  taking  it 
while  he  is  alse.ep  is  larceny  from  the  building.3 
The  taking  it  while  he  is  awake  would  probably 
amount  to  simple  larceny  only,4  the  property  not  br- 
ing so  related  to  the  person  as  to  be  under  his  pro- 
tection; while  if  taken  from  under  the  pillow  of  the 
owner  while  he  is  asleep,  especially  if  the  taking  in- 
volved a  disturbance  of  the  person,  it  might  be  lar- 
ceny from  the  person.  The  question  in  all  cases  is 
whether  the  property  is  so  situated  that  it  may  be 
taken  without  a  violation  of  the  protection  supposed 
by  the  law  to  be  afforded  by  being  kept  in  a  build- 
ing, or  being  within  the  personal  custody  of  the 
owner.  If  so,  then  simple  larceny  only  is  com- 
mitted. If,  on  the  other  hand,  the  protection  af- 
forded by  the  building  or  by  personal  custody  be 
violated,  then  the  larceny  is  from  the  building  or 

1  Com.  v.  Lester,  129  Mass.  101. 

2  Martinez  v.  State,  41  Texas,  126. 
8  Rex  v.  Hamilton,  8  C  &  P.  49. 

4  Com.  v.  Smith,  111  Mass.  429. 


278  CRIMINAL   LAW. 

from  the  person,  as  the  case  may  be.1  The  personal 
custody  need  not  be  actual,  but  may  be  constructive, 
as  the  cases  just  cited  show.  And  perhaps  a  case 
might  be  supposed  where  the  protection  of  the  build- 
ing would  be  constructive  also  2  The  old  notion  that 
in  order  to  constitute  larceny  from  the  person  the 
larceny  must  be  by  stealth,  privily  or  clandestinely, 
and  without  the  knowledge  of  the  owner,  which  was 
embodied  in  some  early  statutes,  is  probably  not  now 
recognized  by  the  law  of  any  State.3 

Since  the  building  is  not  meant  to  be  a  protection 
against  the  owner  of  it,  a  larceny  by  the  owner  of 
the  house  is  not  larceny  from  the  building.4  And 
for  the  same  reason  a  larceny  by  the  owner's  wife  is 
not  a  larceny  from  the  building.6 

§206.  Place.  —  That  larceny  in  one  jurisdiction 
of  goods  thence  transported  to  another  jurisdiction 
may  be  larceny  in  the  latter,  has  already  been 
shown.6 

§  297.  The  larceny  at  the  same  time  of  property 
of  different  owners,  though  sometimes  held  to  be 
separate  larcenies  of  the  property  of  the  different 
owners,  is  but  a  single  act;  and.  both  upon  the  rea- 
son of  the  thing  and  the  tendency  of  the  modern  au- 
thorities, constitutes  but  a  single  offence.  The  act 
as  an  offence  is  against   the   public,  and  not  against 

i  Regina  v.  Selway,  8  Pox  C.  C.  235. 

-  See  also  United  States  v.  Jones.  ■'!  Wash.  C.  Ct.  209 ;  and  ante, 
Robber} . 

3  Com.  v.  Diraond,  3  Cush.  (Mass)  235;  2  Bish.  Cr.  Law,  §  895 
ei  seq. 

*  Rex  v  Gould,  Leach  C.C.  (4th  ed.)  217;  Com.  r.  Bartnett,  8  Gray 
(Mass.)  150.     Bnl  Bee  Regina  '•.  Bowden,  2  Moo.  C.  C.  285. 

6  Lex  v.  Gould,  Leach  C.  C.  (4th  ed.)  217.  6  Ante,  §  80. 


EMBEZZLEMENT.  279 

the  several  owners,  with  reference  to  whom  it  is  but 
a  trespass.  The  allegation  of  ownership  is  for  the 
purpose  of  identification  of  the  property,  and  is  but 
matter  of  pleading.1 

EMBEZZLEMENT. 

§  298.  Embezzlement,  though  not  an  offence  at 
common  law,  is  now  so  universally  made  such  by 
statute  as  to  be  of  general  interest,  subject  to  spe- 
cial statutory  differences  or  limitations.  It  may  be 
defined  generally  as  the  fraudulent  appropriation 
of  another's  property  by  one  who  has  the  lawful  pos- 
session; and  is  distinguished  from  larceny  by  the 
fact  that  in  the  latter  there  is  no  possession,  but  this 
is  taken.  The  statutes  creating  the  crime  of  em- 
bezzlement, it  has  been  well  said,  "have  all  been 
devised  for  the  purpose  of  punishing  the  fraudulent 
and  felonious  appropriation  of  property  which  had 
been  intrusted  to  the  person  by  whom  it  was  con- 
verted to  his  own  use  in  such  a  manner  that  he  could 
not  be  convicted  of  larceny  for  appropriating  it."  If 
the  property  at  the  time  it  is  taken  is  in  the  posses- 
sion, actual  or  constructive,  of  the  owner,  it  is  lar- 
ceny; if  it  is  not,  it  is  embezzlement.2 

§  299.  Possession  and  Custody  distinguished.  —  Nice 
questions  have  arisen  as  to  what  constitutes  the  pos- 
session which  is  violated  in  larceny,  but  which  in 
embezzlement  is  in  the  alleged  delinquent.      Where 

1  Nichols  v.  Com.,  78  Ky.  180;  State  v.  Hennessey,  23  Ohio  St.  339  ; 
State  v.  Merrill,  44  N.  H.  624 ;  Bell  v.  State,  42  Ind.  335 ;  State  v. 
Morphin,  37  Mo.  373 ;  Wilson  v.  State,  45  Texas,  76 ;  Lowe  v.  State, 
57  Ga.  171. 

2  Com.  v.  Berry,  99  Mass.  428;  Com.  v.  Hays,  14  Gray  (Mass.)  62; 
Rex  v.  Bazeley,  2  Leach  C.  C.  (4th  ed.)  835. 


280  CRIMINAL   LAW 

there  is  no  general  relationship,  as  thai  of  princi- 
pal and  agent,  or  employer  and  employee,  other  than 
thai  of  a  special  and  particular  trust,  Little  difficulty 
arises.  The  party  trusted  has  the  possession  by  de- 
livery for  a  purpose,  and,  having  the  righl  to  the 
possession,  violates  the  trust  by  fraudulently  con- 
verting the  property  to  his  own  use,  whereby  the 
crime  of  embezzlemenl  becomes  complete.  Where, 
however,  this  general   relationship  of  employer  and 

employee  exists,    it    often  lieeonies  a  (pieslloll  of  some 

difficulty  to  determine  which  party  has  the  poss 
sion,  —  a  difficulty  which  can  be  besl  illustrated  by 
reference  to  a  few  decided  eases.  Thus,  if  a  teller 
in  a  hank,  to  whom  the  funds  of  the  hank  are  in- 
trusted during  business  hours  for  the  purpose  oi 
transacting  the  business  of  the  hank,  abstracts  the 
funds  from  the  vault  after  business  hours,  and  after 
they  have  been  withdrawn  from  his  possession  and 
put  under  the  control  of  the  cashier,1  this  is  lar- 
ceny, because  the  funds  were  in  the  possession  of 
the  bank.  So.  if  a  clerk  ordinarily  intrusted  with 
the  sale  of  goods,  after  the  store  is  (dosed,  enters  the 
store  and  takes  away  the  goods.2  Money  taken  from 
the  till  of  the  master  by  a  servant  is  stolen,  because 
it  is  taken  from  the  possession  ol  the  master,  the 
servant  having  only  the  custody.  Money  taken  from 
a  customer  by  the  servant,  and  put  in  his  own  pockel 
before  it  reaches  the  till,  is  embezzled,  the  servant 
having  possession  for  delivery  to  (lie  master,-     the 

latter,    however,    never    having    possessed    it.3      The 

'  Com  v   Barry,  1 16  Masa   l  >"  i    Davis,  104  Maw 

■  Rex  v.  Murray,  5  C  S  P   I  15 :  Regina  v  Watt,  4  Cox  C  I 
Regina  v.  Hawkins  l   Den.  C  C.  584,  Coin   v.  Berry,  99  Mass    128, 


EMBEZZLEMENT.  281 

distinction  is  very  fine,  though  clear,  and  seems  to 
be  supported  by  the  authorities.  In  some  States, 
however,  the  peculiarities  of  the  statute  seem  to 
authorize  an  indictment  for  embezzlement  where  the 
possession  has  reached  the  master,  and  the  servant 
holds  for  him,1  by  what  is  elsewhere  generally  re- 
garded as  a  mere  custody  or  bare  charge.2  The 
theory  of  constructive  possession  was  early  carried 
to  a  great  length,  in  order  to  make  the  law  of  lar- 
ceny apply  to  acts  which  as  yet  no  statute  of  embez- 
zlement had  covered.  Thus,  a  watch  placed  in  the 
hands  of  a  watchmaker  to  be  cleaned  was  held  to  be 
in  the  possession  of  the  owner,  so  that  the  conversion 
of  it  was  larceny  in  the  watchmaker.8 

§  300.  Clerk.  Servant.  Agent.  Officer.  —  What 
constitutes  the  several  relationships  of  master  and 
servant,  employer  and  clerk,  principal  and  agent, 
and  the  exact  meaning  of  the  several  terms,  has 
also  been  the  subject  of  much  discussion.  There 
seems  to  be  little  or  no  distinction,  so  far  as  the  law 
of  embezzlement  is  concerned,  between  the  words 
"clerk"  and  "servant,"  though  in  popular  parlance 
they  would  hardly  be  confounded;  but  between  them 
and  the  word  "agent"  there  is  a  distinction  made. 
Just  where  the  line  is  drawn,  however,  as  between 
the  one  and  the  other,  is  not  very  well  defined. 
Though,  in  general,  the  idea  of  continuity  of  service 
underlies  the  relation  of  clerkship  or  service,  yet  this 

People  v.  Hennessey,  15  Wend.   (N.Y.)  147;  Com.  v.  King,  9  Cush. 
(Mass.)  284 ;  United  States  v.  Clew,  4  Wash.  C.  Ct.  700. 

1  Lowenthal  v.  State,  32  Ala.  589  ;  People  v.  Hennessey,  15  Wend. 
(N.Y.)  147. 

2  l  Hawk  P.  C.  (8th  ed.)  144,  §  6  3  Ibid.,  §  10. 


•2$2  CRIMINAL   LAW. 

is  by  no   means  necessary;   and  an  agency  may  be 
general  and  continuous  as  well;   so  that  such  con- 
tinuity is  not  decisive  as  a  criterion,  though  doubt- 
Less  of  sonic  importance.     In  tact,  continuity  is  no( 
utial  to  the  quality  of  servant   or  clerk.1     Per- 
haps the  idea  of  control  is  more  distinctively  charac- 
teristic  of  the    relationship   of   master   and   servant 
than  of  thai  of  principal  and  agent.2      Yet  even  here 
the  agency  may  be  such -as  to  give  the  principal  as 
full  control  of  his  agent  as  if  he  were  a  servant.      An 
ageni  is  always  acting  for  his  principal,  with  author- 
ity to  bind  him  to  the  extent  of  his  agency;  while 
a  servant,  though  in  a  certain  sense  acting  for  his 
master,  has  not   the  representative  character  of  an 
agent,  and   has  uo  authority,  as  servant,  to  bind  his 
master.      His  negligence,  however,  may  be  imputed 
to  the  master.     Personal    presence  and  supervision 
also  belong  more  especially   to  the   idea    of    master- 
ship.3     Still   it   is   only  the   circumstances   of  each 
particular  ease  which  will   determine  under  which 
category  a  particular  person  comes;   and  no  better 
aid  in  this  particular  can  be  given  than  by  a  refer- 
ence to  cases   which    involve   special    circumstances. 
Thus,   although  an  apprentice   is  not   technically  a 
servant,    he    may,    under    special    circumstances,    lie 
one  within  the  meaning  of  the  statute  of  embezzle- 
ment.4    But  a   general   ageni   of  an   insurance  com- 
panj    resident  abroad  is  not   a  servant;6  and  though 

i  Begins  v.  Negus,  I..  R.  •-'  C.  C  .34. 

-  Begins  v   Bow<  re,  I.   R.  1  C.  C.  41. 

3  Rex  v.  Squire,  Russ.  a  Rj    349. 

>  Rex  r.  Mellish,  Russ  &  Ry  80. 

5  Begina  v.  .Ma\ ,  L.  &  C.  13. 


EMBEZZLEMENT.  283 

a  person  employed  to  sell  goods  on  commission  and 
collect  the  purchase  money  is  not  a  clerk,1  a  com- 
mercial traveller,  who  does  not  live  with  his  em- 
ployers, or  transact  business  at  their  store,  may  be;2 
while  one  who  receives  material  to  be  wrought  upon 
in  his  own  shop,  and  to  be  returned  to  the  owner  in 
the  shape  of  manufactured  goods,  is  neither  a  clerk, 
servant,  nor  agent.3  Neither  is  a  constable  who  re- 
ceives a  warrant  to  collect,  with  instructions  to  have 
it  served  if  not  paid.  He  is  rather  a  public  officer.* 
So  the  keeper  of  a  county  poor-house  stands  rather 
in  the  relation  of  a  public  officer  than  of  servant  to 
the  superintendent  who  appoints  him.5 

§  301.  Agency.  —  But  not  all  agencies  come  within 
the  purview  of  this  statute 

One  whose  business  is  that  of  a  general  agent  for 
divers  persons,  and  from  its  very  nature  carries  with 
it  the  implied  permission  to  treat  the  moneys  re- 
ceived as  a  general  fund  out  of  which  all  obligations 
are  to  be  paid,  such  fund  to  lie  used  and  denominated 
as  his  own,  is  not  held  to  be  an  agent  within  the 
meaning  of  the  statute  of  embezzlement.  Thus,  an 
auctioneer,  who  is  the  agent  of  the  buyer  and  the  seller 
for  effecting  the  sale,  would  find  it  wholly  imprac- 
ticable to  carry  on  his  business  if  he  were  obliged 
to  keep  separate  the  funds  of  each  particular  seller.6 
So  a  general  collector  of  accounts  is  not  such  an 


1  Regina  v.  Bowers,  L.  R.  1  C.  C.  14. 

2  Rex  v.  Carr,  Russ   &  Ry.  198. 

3  Cora.  v.  Young,  9  Gray  (Mass.)  5. 

4  People  v.  Allen,  5  Den.  (N.  Y.)  76. 
6  Coats  v.  People,  22  N.  Y.  245. 

6  Com.  v.  Stearns,  2  Met.  (Mass.)  343. 


284  CRIMINAL  LAW. 

agenl  of  those  for  whom  he  collects,1  nor  Is  a  general 
Insurance  agenl  receiving  premiums  for  divers  com- 
panies.2 Nor  would  a  general  commission  merchant 
be;  nor  any  person  who,  from  the  nature  of  his  busi- 
-  or  otherwise,  has  authority  to  confound  and 
deposit  in  one  account,  as  his  own,  funds  received 
from  divers  sources.3 

The  word  "officer,"  as  used  in  statutes  of  embez- 
zlement, \\-:>  been  held  to  apply  to  the  sheriff  of  a 
county,1  the  directors  of  a  bank,5  and  the  treasurers 
of  railroads  and  other  bodies  politic0  Perhaps  "ser- 
vant "  would  aptly  describe  such  persons,  if  the  word 
"officer"  was  not  in  the  statute.7 

§  302.  Employment.  —  Embezzlement,  as  we  have 
seen,  is  substantially  a  breach  of  trust;  and  is  the 
peculiar  crime  of  tie.se  who  are  employed  or  trusted 
by  others.  Many  of  the  statutes  limit  the  crime  to 
eases  where  the  fraudulent  commission  is  by  one  who 
gets  possession  of  the  money  or  property  "by  virtue 
of  his  employment."  Under  this  limitation  it  has 
been  held,  by  a  very  strict  construction,  thai  If  a 
servant  employed  to  sell  goods  ai  a  fixed  price  sells 
them  at  a  less  price,  and  embezzles  the  money,  — 
that  monej  not  being  the  master's,  hut  the  purchaser 

i  Com.  v.  Libbey,  11  Met.  (Mass.)  64. 

a  People  c.  Howi    2  1        C.  (N.  T.)  383. 

,  r.  Foster,  107  Mass.  221  :  Mulford  v.  People,  28  X.  I"..  Rep 
1096  (111).;  People  v.  Wadsworth,63  Mich  500.  Otherwise  bj  statute 
in  Illinois,  ;is  to  commission  merchants,  warehousemen,  etc.  Wright 
v.  People,  iu  111.  382. 

4  State  b   Brooks,  42  Tex.  62. 

■'•  (',,11,.  v.  Wj  man,  8  Met.  (Mass.)  247. 

'■  Com.  v.  Tuckerman,  10  Graj  (Mass.)  173. 

'  Rex  v.  Squire,  Russ.  &  Ry.  349  ;  Regina  v.  Welch,  2  C.  Si  K.  296. 


EMBEZZLEMENT.  285 

still  remaining  bound  for  the  full  fixed  price,  —  the 
servant  does  not  come  in  possession  of  his  master's 
money  by  virtue  of  his  employment.1  So,  when  a 
servant  receives  money  for  the  use  of  his  master's 
property,  but  in  a  manner  contrary  to  his  right  or 
authority,  and  in  violation  of  his  duty,  it  is  said  not 
to  be  his  master's  money,  but  rather  his  own.2  But 
this  strictness  of  interpretation  has  not  been  followed 
in  this  country,  where  it  has  been  held  that,  if  an 
agent  obtains  money  in  a  manner  not  authorized,  and 
in  violation  of  his  duty,  yet  under  the  guise  of  his 
agency,  he  gets  it  by  virtue  of  his  employment;3 
and  other  English  cases  seem  now  in  accord  with 
this  view.4 

§  303.  Subject  Matter  of  Embezzlement. —  It  is  gener- 
ally provided  that  all  matters  which  may  be  subjects 
of  larceny  may  also  be  subjects  of  embezzlement. 
Some  statutes,  however,  are  not  so  comprehensive. 
Save  these  differences,  which  cannot  here  be  particu- 
larized, it  may  be  said  that  whatever  may  be  stolen 
may  be  embezzled;  and  what  may  be  stolen  has  been 
considered  under  the  title  Larceny. 

§  304.  Intent  to  defraud  is  an  essential  element  of 
the  case.  And  if  the  money  is  taken  under  a  claim 
of  right,  as  where  a  cashier  of  a  mercantile  estab- 
lishment intercepts  funds  of  his  employers,  and 
without  their  knowledge  and  against  their  wish  ap- 
propriates them  to  the   payment  of  his   salary,    by 

1  Regina  v.  Aston,  2  C.  &  K.  41.3 ;  Rex  v.  Snowley,  4  0.  &.  P.  390. 

2  Regina  r.  Harris,  6  Cox  C.  C.  3G3  ;  Regina  v.  Cullum,  L.  R.  2 
C.  C.  28. 

3  Ex  parte  Hedley,  31  Cal.  103. 

4  Regina  v.  Beechey,  Russ.  &  Ry.  319 ;  Rex  v.  Salisbury,  5  C.  &  P. 
155 ;  Regina  v.  Wilson,  9  C.  &  P.  27. 


28  ;  CRIMINAL   LAW. 

charging  them  to  his  account,  this  is  no  embezzle- 
ment.1    So  if  the  use  of  money  was  made  in  g 1 

faith,  wiih  no  intention  of  depriving  the  owner  of 
it,  the  mere  inability  to  return  the  money  does  not 
make  the  acl   embezzlement.2 

FALSE    PRETENCES. 

§  305.  Mere  verbal  lying,  whereby  one  ts  defrauded 
of  his  property  without  the  aid  of  some  visible  token, 
device,  or  practice, — as  when  one  falsely  pretends 
th.it  he  lias  been  sent  for  money,3  or  falsely  states 
that  goods  sold  exceed  the  amount  actually  deliv- 
ered,* or  falsely  asserts  his  ability  to  pay  for  goods 
he  is  about  to  buy,6  —  was  not  formerly  an  indictable 
offence.  But  as  many  frauds  were  practised  in  this 
way  which  were  mere  private  frauds,  and  which  the 
court,  with  every  disposition  to  punish,  could  aol 
stretch  the  law  of  larceny  to  cover,  it  was  at    length 

enacted"  that   designedly  obtaining  money,    g Is, 

wares,  or  merchandises  by  false  pretences,  with  in- 
tent to  defraud  any  person,  should  he  indictable. 
The  provisions  of  this  statute  have  been  80  generally 
adopted  in  this  country,  that,  if  it  cannot  be  said  to 
be  strictly  part  of  the  common  law,  it  may  be  con- 
sidered as  the  general  law  of  the  land.     And  though 

the    terms     in    which    the    enactment     is    made    may 

'  Rosa  v.  Innis,  35  111  487;  Kirby  v.  Foster,  22  At]  Rep  1111 
IK.  I.). 

-  People  v.  Hurst,  62  Mich  276  Myers  v.  State,  4  Ohio  Cue.  Ct. 
570;  People  v.  Wadsworth,  63  Mich  500. 

8  Regina  v  Jones,  i  Salk  379 

1  Rex  v  Osborn,  3  Bnrr   1697 

6  Cum  v.  Warren,  6  Mass    ~2 

6  30  Geo  II.  c.  24. 


FALSE  PRETENCES.  287 

slightly  differ  in  the  different  States,  yet  they  are  so 
generally  similar  that  in  most  cases  the  decisions  in 
one  State  will  serve  to  illustrate  and  explain  the 
statutes  in  others.  And  as  the  words  of  the  statute 
cover  cheats  as  well  by  words  as  by  acts  and  devices, 
indictments  under  the  statute  are  now  usually  re- 
sorted to,  unless  special  circumstances  or  special 
provisions  compel  a  resort  to  the  old  form  of  plead- 
ing. Under  the  statutes,  in  order  to  constitute  the 
offence,  it  must  appear  (1)  that  the  pretence  is  false; 
(2)  that  there  was  an  intent  to  defraud;  (3)  that  an 
actual  fraud  was  committed;  (4)  that  the  false  pre- 
tences were  made  for  the  purpose  of  perpetrating  the 
fraud;  (5)  and  that  the  fraud  was  accomplished  by 
means  of  the  false  pretences.1 

§306.  (1.)  Pretence  must  be  False.  —  A  false  pre- 
tence is  a  false  statement  about  some  pastor  exist- 
in--  fact,  in  contradistinction  from  a  promise,  an 
opinion,  or  a  statement  about  an  event  that  is  to 
take  place.  Thus,  a  pretence  that  one  has  a  warrant 
to  arrest,  if  false,  is  within  the  statute,2  while  a  pre- 
tence that  his  goods  "are  about  to  be  attached"  is 
not.3  Nor  is  a  statement  that  something  could, 
would,   or  should  be  done.4 

The  shades  of  distinction  are  sometimes  very  nice. 
Thus,  "  1  can  give  you  employment  "  is  no  pretence  :5 
but  "I  have  a  situation  for  you  in  view"  is.6     And 

1  Com  v.  Drew,  19  Pick    (Mass.)  179. 

2  Cora.  v.  Henry,  22  Pa.  253. 

3  Burrow  v.  State,  12  Ark.  65. 

4  State  v.  Evers,  49  Mo.  542  ;  Johnson  v.  State,  41  Tex.  65  Ryan 
v.  State,  45  Ga.  128  ;  State  v.  Magee,  11  Ind.  154. 

8  Ranney  v.  People.  22  N.  Y.  413. 

6  Com.  v.  Parker,  Thatcher  Cr.  Cas.  (Mass.)  24. 


osS  CRIMINAL   LAW. 

11  seems  that  the  false  statement  of  an  existing  dc- 
sire  <>r  intention  to  accomplish  some  present  pur- 
pose,  may  he  a  false  pretence.1  Thus,  a  promise  is 
a  statement  of  an  intention  to  carry  out  the  promise; 

ami  if  there  was  no  such  intention,  it  is  a  false  pre- 
tence.2 The  belief  by  the  party  making  tin  state- 
ment that  it  is  false  is  of  no  moment,  if  it  is  in  fact 
true.3  On  the  contrary,  if  it  be  false,  vet  he  believi  s 
it  to  he  true,  this  is  not  within  the  statute,  as  in  such 
case  there  is  no  intent  to  defraud.  But  opinions  as 
to  quality,  value,  quantity,  amount,  and  the  like, 
are  held  not  to  he  false  pretences.4  The  fact,  how- 
ever that  one  does  or  does  not  hold  an  opinion  is  as 
much  an  existing  fact  as  any  other:  and  if  it  is 
falsely  stated  with  intent  to  defraud,  and  does  de- 
fraud, it  is  in  every  particular  within  both  the  letter 
and  spirit  of  the  law.5  It  may  be  difficult  to  prove 
that  an  opinion  is  known  by  the  person  who  as- 
serts it  to  he  false,  and  that  it  was  falsely  asserted 
with  intent  to  defraud.  lint  this  is  a  question  of 
procedure. 

The  pretence  must  be  false  at  the  time  when  the 
property  is  obtained.  If  it  he  false  when  made,  but 
becomes  true  at  the  time  when  the  property  is  ob- 
tained,   —  as   where    one    states    that    he    lias    bought 

i  Stat"  v.  Rowley,  12  Conn   mi  ;  State  v.  Sarony,  95  Mo.  349. 

-  Rcgina  v  Jones,  6  Cox  C.  C.  167 

3  Rex  v.  Spencer,  3  C.  &  P.  420,  Stat.-  v.  Asher,  50  Ark.  427. 

*  Reginar.  Williamson,  11  Cox  C  C  328;  Regina  v  Oates,  6  Cox 
C.C.540;  Regina  v  Bryan,  7  Cox  C.  C  312;  Regina  I  -  3  Cox 
C.  C.  262  .  Scott  v.  People,  62  Barb  (N,  Y  )  62;  Reese  v.  Wjman,  '.» 
Ga.  430;  State  »  Estes,  46  Me   150 

,.  ,     Tomlin,  5  Dutch.  (N.  J  )  18;  Regina  v.  Ardley,  L.  R. 
1  C.  C  301. 


FALSE   PRETENCES.  289 

cattle,  when  in  fact  he  had  not  at  the  time  of  the 
statement,  but  had  when  he  obtained  the  money,  — 
there  is  no  offence.1  Vice  versa,  however,  if  the 
statement  be  true  when  made,  but  becomes  false  at 
the  time  of  the  obtaining  the  property, — as  if,  in 
the  case  supposed,  the  cattle  had  been  bought,  but 
had  been  sold  at  the  time  when  the  property  was 
obtained,  —  then  the  offence  would  no  doubt  be 
committed. 

§  307.  Subject  Matter.  —  Any  lie  about  any  subject 
matter,  by  word  or  deed,  —  as  by  showing  a  badge, 
or  wearing  a  uniform,  or  presenting  a  check  or  sam- 
ple or  trade-mark,  or  by  a  look  or  a  gesture,  —  sub- 
ject to  the  foregoing  limitations,  is  a  false  pretence. 
Thus,  if  one  falsely  assert  as  an  existing  fact  that 
he  possesses  supernatural  power,2  or  that  he  has 
made  a  bet,3  or  that  he  is  pecuniarily  responsible 4  or 
irresponsible,5  or  is  a  certain  person,6  or  that  he  is 
agent  for  or  represents  a  certain  person,7  or  belongs 
to  a  certain  community8  or  military  organization,9 
or  is  married,10  or  unmarried,11  or  engaged  in  a  cer- 
tain business,12  or  that  a  horse  which  he  offers  to 

1  In  re  Snyder,  17  Kan.  542. 

2  Regina  v.  Giles,  10  Cox  C.  C.  44  ;  Regina  v.  Bunce,  1  F.  &  F.  523. 

3  Young  v.  Rex,  3  T.  R.  98. 

i  State  v.  Pryor,  30  Ind.  350. 

5  State  v.  Toralin,  5  Dutch.  (N.  J.)  13. 

6  Com.  v.  Wilgus,  4  Pick.  (Mass.)  177. 

7  People  v.  Johnson,  12  Johns.  (N.  Y.)  292. 

8  Rex  v.  Barnard,  7  C.  &  P.  784. 

9  Hamilton  w.  Regina,  9  Q.  B.  271  ;  Thomas  v.  People,  34  N.  Y.  351. 

10  Regina  v.  Davis,  11  Cox  C.  C.  181. 

11  Regina  v.   Copeland,  C.  &  M.  516;  Regina  v.  Jennison,  9  Cox 
C.  C.  158. 

12  People  v.  Dalton,  2  Wheeler  Cr.  Cas.  (N.  Y.)  161. 

19 


200  CRIMINAL   LAW. 

sell  is  sound,1  or  that  a  flock  of  sheep  is  free  from 
disease,2  or  any  other  lie  about  any  matter  where 
money  is  fraudulently  obtained, — the  offence  is 
complete.  "Why  should  we  not  hold  that  a  mere 
lie  about  any  existing  fact,  told  for  a  fraudulent 
purpose,   should  be  a  false  pretence?"3 

§  308.  "Puffing."  — The  ordinary  "puffing"  of  the 
quality  of  an  article,  such  as  is  to  be  expected  in  the 
course  of  trade,  though  perhaps  immoral,  is  not 
criminal;  because  it  is  a  mere  expression  of  opinion 
such  as  the  purchaser  should  expect  and  be  on  the 
lookout  against.  Thus,  a  statement  that  certain 
plated  spoons  were  equal  to  "Elkinton's  A"  (a  par- 
ticular  sort  of  plated  goods),  and  had  as  much  silver 
as  those  goods,  was  held  not  to  be  a  criminal  false 
pretence;4  an  extreme  case,  however,  and  one  with 
which  dissatisfaction  has  been  expressed.5 

This  principle,  however,  will  not  excuse  a  positive 
statement  as  to  a  fact,  made  falsely;  as,  for  instance, 
a  statement  that  certain  goods  are  silver,  when  in  fact 
they  are  of  base  metal.6  Nor  will  it  excuse  a  false 
representation  of  soundness  upon  the  sale  of  a  horse." 
"A  statement  may  be  a  mere  commendation  or  ex- 
pression of  opinion,  by  which  the  seller  seeks  to  en- 
hance the  price  of  the  property,  ami  justifiable;  but 
when  it  is  made  and  intended  as  an  assertion  of  a  fact 
material  to  the  negotiation,  as  a  basis  on  which  the 

1  State  v.  Stanley.  64  Me.  157. 

2  People  o.  Crissie,  t  Den.  (N.  Y.)  525. 

8  Alderson,  B.,  Region  v.  Wbolley,  l  Den.  C.  C.  559. 

4  Regina  v.  Bryan,  7  Cox  C.  C.  312. 

5  Erle.C.  J.,  in  Regina  v.  Goes,  8  Cox  C.  C.  202. 

6  Regina  v.  Roebuck,  7  Cox  C.  C.  126. 

7  State  v.  Stanley,  64  Me.  157;  Jacksuu  v.  People,  120  111.  139. 


FALSE  PRETENCES.  291 

sale  is  to  be  made,  if  it  be  false,  and  is  known  to  the 
seller  to  be  so,  the  seller  is  guilty  of  the  offence,  if  he 
thereby  induces  the  buyer  to  part  with  his  property. "  2 

§  309.  Implied  Representations.  —  There  may  be  an 
obtaining  by  false  pretences,  though  all  defendant's 
statements  were  true,  if  a  falsehood  was  implied. 
Thus  where  one  sold  certain  goods  to  another,  hav- 
ing previously  given  a  bill  of  sale  of  them  to  a  third 
party,  this  was  an  obtaining  by  false  pretences.2 

The  pretence  need  not  be  in  words;  the  falsity 
may  consist  entirely  in  acts.  Thus  where  the  de- 
fendant, not  being  a  member  of  the  University,  went 
to  purchase  goods  in  Oxford  wearing  a  sort  of  cap 
worn  only  by  the  students  of  a  certain  College,  it 
was  held  to  be  an  obtaining  by  false  pretences.3 
So  where  a  coal  miner,  who  was  paid  according  to 
the  number  of  tubs  of  coal  he  mined,  put  two  tickets 
instead  of  one  into  a  tub,  and  thus  secured  double 
pay,  it  was  held  an  obtaining  by  false  pretences.4 

The  giving  of  a  check  by  a  person  who  has  no  bank 
account  is  a  false  pretence.5  But  if  he  has  an  ac- 
count, and  a  reasonable  belief  that  the  check  will  be 
good  when  presented,  it  is  not  a  false  pretence, 
though  at  the  time  the  check  is  drawn  there  is  no 
money  in  the  bank  to  meet  it.6 

i  Jackson  v.  People,  126  111.  139,  149. 

2  Regina  v.  Sampson,  52  L.  T.  772  ;  see  also  Regina  v.  Eandell,  16 
Cox  C.  C.  3.35. 

8  Rex  p.  Barnard,  7  C.  &  P.  784;  see  also  Regina  v.  Bull,  13  Cox 
C.  C.  608. 

*  Regina  v.  Hunter,  10  Cox  C.  C.  642. 

5  Rex  v.  Parker,  7  C.  &  P.  825;  People  v.  Wasservogle,  77  Cat 
173  ;  Barton  v.  People,  25  N.  E.  Rep.  776 ;  s.  c.  135  111.  405. 

6  Regina  v.  Walne,  11  Cox  C.  C.  647;  Com.  v.  Drew,  19  Pick. 
(Mass.)  179. 


292  CRIMINAL  LAW. 

§  310.  (2.)  Intent  to  defraud.  —  If  the  money  be 
obtained  by  the  false  pretence,  the  intent  being  to 
obtain  it  thereby,  as  where  one  obtains  a  loan  upon 
a  forged  certificate  of  stock  in  a  railroad  company, 
the  offence  is  complete,  though  the  party  obtaining 
the  money  fully  intended  and  believed  he  should  be 
able  to  pay  the  note  at  maturity  and  redeem  the 
stock.1  If  the  object  in  getting  possession  of  the 
property  be  not  to  defraud,  but  to  compel  payment  of 
a  debt,  —  as"  when  a  servant  gets  possession  of  the 
goods  of  his  master's  debtor,  to  enable  his  master 
to  collect  his  debt,  — the  offence  is  not  committed.2 
So  if  the  object  be  merely  to  get  one's  own  property 
from  the  possession  of  another.3 

§  311.  (3  and  4.)  Actual  Perpetration  of  the  Fraud. 
—  If  the  fraud  be  not  actually  accomplished  by  ob- 
taining the  goods,  money,  etc.,  as  the  charge  may  be, 
it  is  but  an  attempt,  and  only  indictable  as  such. 
And  if  a  person  is  merely  induced  by  the  false  pre- 
tence to  pay  a  debt  which  he  previously  owed,  or  to 
indorse  a  note  which  he  had  agreed  to  indorse,  it  is 
no  offence  under  the  statute.4  So  it  has  been  held  in 
New  York,5  that  parting  with  money  for  charitable 
purposes  is  not  within  the  statute.  But  this  case 
rests  upon  the  supposed  restraining  force  of  the  pre- 
amble of  the  statute ;  and  elsewhere  the  law  has  been 

1  Com.  v.  Coo,  115  Mass.  481;  State  v.  Thatcher,  35  N.  J.  44:>; 
Regina  v.  Naylor,  10  Cox  C.  C.  149;  Com.  v.  Schwartz,  18  S.  W.  Rep. 
358  (Ky.). 

2  Rex  v.  Williams,  7  C.  &  P.  354;  post,  §  311. 
8  In  re  Cameron,  24  Pac.  00  (Kan.). 

4  People  v.  Thomas,  3  Hill  (N.  Y.)  169;  ante,  §  310;  People  v. 
Getchcll,  6  Mich.  490. 

6  People  v.  Clough,  17  Wend.  351. 


FALSE  PRETENCES.  293 

held  to  be  the  reverse.1  So  obtaining  a  promissory- 
note  from  a  minor  has  been  held  to  be  no  actual 
fraud,  as  the  minor  is  not  bound  to  pay ; 2  though  it 
may  well  be  doubted  if  the  paper  upon  which  the 
note  is  written  is  not  "goods,"  within  the  meaning 
of  the  statute.3  So  where  defendant  sells  by  false 
pretences  a  promissory  note  which  in  fact  is  perfectly 
good,  the  crime  is  not  committed.4 

From  the  rule  that  the  false  pretence  must  be  the 
inducement  for  parting  with  the  property,  it  follows 
that  after  possession  and  property  —  though  under  a 
voidable  title  —  is  obtained,  false  representations, 
whereby  the  owner  is  induced  to  permit  the  property 
to  be  retained,  does  not  amount  to  the  offence ;  as 
where  a  vendor,  suspecting  the  solvency  of  the  ven- 
dee, proposes  to  retake  his  goods,  but  is  induced  by 
false  pretences  to  abandon  his  purpose;  though  it 
might  be  otherwise  if  the  right  to  the  property  had 
not  passed.5 

§  312.  Fraud  in  both  Parties.  —  When  in  a  transac- 
tion each  party  makes  false  pretences,  and  each  de- 
frauds the  other,  —  as  when  two  parties  exchange 
watches,  each  falsely  pretending  that  his  watch  is 
gold  of  a  certain  fineness,  —  each  is  indictable,  and 
neither  can  defend  on  the  ground  of  the  other's 
deceit.6    It  is  held  in  New  York,  however,  that  if 

1  Regina  v.  Jones,  1  Den.  C.  C.  551  ;  Regina  v.  Hensler,  11  Cox  C. 
C  570;  Com.  v.  Whitcomb,  107  Mass.  486.  So  in  New  York  now  by 
Statute  1851,  c.  144,  §  1. 

2  Com.  v.  Lancaster,  Thatch.  Cr.  Cas.  (Mass.)  428. 
8  Regina  v.  Danger,  7  Cox  C.  C.  303. 

4  People  v.  Wakely,  62  Mich.  297. 

6  People  v.  Haynes,  14  Wend.  (N.  Y.)  546. 

6  Com.  v.  Morrill,  8  Cush.  (Mass.)  571. 


294  CRIMINAL  LAW. 

the  money  parted  with  is  for  the  purpose  of  inducing 
the  false  pretender  to  violate  the  law,  as,  fur  in- 
stance, a  pretended  officer  not  to  serve  a  warrant, 
the  indictment  will  not  lie.1  But  this  case  proceeds 
upon  the  ground  that  the  object  of  the  statute  is  to 
protect  the  honest,  while  the  better  view  is  that  the 
law  is  for  the  protection  of  all,  by  the  punishment  of 
rogues.  The  application  of  the  principle  that  one 
man  may  escape  punishment  of  crime  because  the 
person  upon  whom  he  committed  it  was  guilty  of  the 
same  or  a  different  crime,  would  paralyze  the  law. 
The  true  rule  is  to  punish  each  for  the  crime  he 
commits. 

§  313.  Delivery  with  Knowledge.  Ordinary  Prudence. 
—  If  the  party  who  delivers  the  goods  is  not  deceived 
by  the  false  pretence,  but  is  aware  of  its  falsity,  the 
offence  is  not  committed,  though  there  would  be  an 
attempt;2  and  so,  perhaps,  if  he  has  the  means  of 
knowledge, — as  when  one  falsely  represents  that 
on  a  former  occasion  he  did  not  receive  the  right 
change,  and  thereby  obtained  additional  change.3 
Yet  if  the  change  thus  obtained  is  through  actual 
deceit,  operating  on  the  mind  of  the  party  who  de- 
livers, it  is  within  both  the  letter  and  the  spirit  of 
the  law.4 

The  false  pretence,   it  was  once  generally  and  is 

1  McCord  v.  People,  46  N.  Y.  470.  Peckhara,  J.,  dissenting,  with 
whom  is  the  weight  both  of  reason  and  authority;  Com.  v.  Henry,  22 
Pa.  253  ;  2  Bish.  Cr.  Law,  §  469.     See  ante,  §  25. 

2  Regina  v.  Mills,  D.  &  B.  C.  C.  205  ;  State  v.  Young,  76  N.  C.  258; 
Regina  v.   Bender,  11  Cox  C.  C.  570. 

3  Com.  v.  Norton,  11  Allen  (Mass.)  266;  Com.  v.  Drew,  19  Pick. 
(Mass.)  170. 

*  Regina  v.  Jessop,  D.  &  B.  C.  C.  442  ;  2  Bish.  Cr.  Law,  §  432  a. 


FALSE  PRETENCES.  295 

now  sometimes  said,  must  be  of  such  a  character  as 
is  calculated  to  deceive  a  man  of  ordinary  intelli- 
gence and  caution. :  One  man,  it  has  been  intimated 
by  high  authority,  is  not  to  be  indicted  because  an- 
other man  has  been  a  fool.2  But  in  the  practical 
application  of  the  rule  the  courts  seem  to  have  been 
guided,  in  determining  whether  the  false  pretence 
was  an  indictable  one,  more  by  the  fact  that  the 
deceit  and  fraud  were  intended  and  actually  accom- 
plished, than  that  they  were  calculated  generally  to 
deceive.  And  the  doctrine  which  formerly  obtained, 
that  if  the  party  from  whom  the  goods  were  obtained 
is  negligent,  or  fails  in  ordinary  prudence,  the 
offence  is  not  committed,  seems  now  to  be  generally 
discarded,  as  a  doctrine  which  puts  the  weak-minded 
and  the  incautious  at  the  mercy  of  rogues.  The  ten- 
dency of  the  more  recent  authorities  is  to  establish 
the  rule  that,  whatever  the  pretence,  if  it  be  intended 
to  defraud,  and  actually  does  defraud,  the  offence  is 
committed.  The  shallowness  of  the  pretence,  and 
its  obvious  falsity,  may  be  evidence  that  the  party 
must  have  had  knowledge,  and  so  was  not  deceived 
or  defrauded  by  the  pretence ;  but  it  is  only  evidence 
upon  the  question  whether  in  fact  the  person  parting 
with  his  property  was  deceived.  If,  in  fact,  the 
party  is  induced  by  the  pretence  to  part  with  his 
money,  —  if  the  pretence  takes  effect,  —  then  the 
money  is  obtained  by  it.  Thus,  it  was  held  that  a 
pretence  that  a  one-pound  note,  reading  so  upon  its 
face,  was  a  five-pound   note,  to  a  party  who  could 

1  Jones  ?>.  State,  50  Ind.  473. 

2  Per  Lord  Holt,  Kegina  v.  Jones,  2  Ld.  Eaym.  1013. 


296  CRIMINAL  LAW. 

road,  was  a  false  pretence.1  It  was  also  held  an  in- 
dictable false  pretence  to  represent  to  a  person  who 
could  not  read,  as  a  Dank  of  England  note,  the  fol- 
lowing instrument:  — 

".£5.]  n.vxK  of  Elegance.  [No.  230. 

"I  promise  to  pay  on  demand  the  sum  of  five 
Rounds,  if  I  do  not  sell  articles  cheaper  than  any- 
body in  the  whole  universe. 

"Five  For  Myself  &  Co. 

"Jan.  1,  1850.  M.  Carroll."2 

So  where  the  defendant  obtained  money  on  the 
pretence  that  he  could  communicate  with  spirits,  it 
was  held  an  obtaining  by  false  pretences.8 

§  314.  (5. )  The  Fraudulent  Pretence  as  the  Means.  — 
The  false  pretence  must  have  been  the  means  where- 
by the  defrauded  party  was  induced  to  part  with  his 
property.  It  is  not  meant  by  this  that  the  false  pre- 
tence should  have  been  the  sole  inducement  which 
moved  the  promoter.  It  is  enough  if,  co-operating 
with  other  inducements,  the  fraud  would  not  have 
been  accomplished  but  for  the  false  pretence.4  So 
when  property  is  sold  with  a  written  covenanl  <>i'  title 
and  against  encumbrances,  and  at  the  same  time  it 

1  Regina  v.  Jessop,  D.  &  B.  C.  C.  442. 

2  Regina  i;.  Coulson,  1  Den.  C.  C.  592.     Seealso  Regina  v.  Wbolley, 

1  Don.  C.  C.  550;  In  re  Greenough,  31  Vt.  27<t  ;  State  v.  Mills.  17  Me. 
211;  Cowen  v.  People,  14  HI.  348 j  Colbert  v.  State,  1  Tex.  App.  314; 
■j.  Bish.   Cr.  Law,  §  464;   Steph.    1'iu-.  <'r.  Law,  art.   330;    Re 
Cr.  l.v.  (9th  od.)  498. 

3  Regina  v.  LawTence,  .10  L.  T.  Rep.  40-1. 

4  State  v.  Thatcher,  .35  N.  J.  445;  People  v.  Eaynes,  11  Wend. 
(\.  V.)  .v.:  ;  Regina  V.  Line...  12  Cox  <  !.  < '.  451;  Lay  v.  Com.,  28 
Gratt.   (Va.)  912;  In  re  Snyder,  17  Kan.  542. 


FALSE   PRETENCES.  297 

is  also  fraudulently  represented  verbally  that  the 
property  is  unencumbered,  the  offence  is  committed 
if  the  verbal  representation  was  the  inducement. 1  It 
is  doubtful,  however,  whether  a  written  covenant  of 
title,  or  against  encumbrances  merely,  can  be  fairly 
regarded  as  a  representation  that  the  property  sold 
is  unencumbered,  so  as  to  be  the  foundation  of  an  in- 
dictment. It  would  seem  to  be  only  an  agreement 
which  binds  the  party  civilly  in  case  of  breach.2 

§  315.  Remoteness  of  the  Pretence.  —  The  pretence 
must  be  reasonably  near  to  the  obtaining;  if  too  re- 
mote, the  crime  is  not  committed.  Thus,  where 
defendant  obtained  admission  to  a  swimming-race 
by  a  false  representation,  and  won  the  prize,  it  was 
held  that  the  prize  was  not  obtained  by  false  pre- 
tences;3 and  where,  to  induce  one  to  buy  certain 
shares  in  the  stock  of  a  corporation,  the  defendant 
falsely  stated  that  their  purchase  was  necessary  in 
order  to  participate  in  the  drawing  of  certain  lots, 
the  falsehood  was  held  too  remote.4  So  when  the 
defendant  by  false  representations  induced  a  city  to 
agree  that  judgment  should  be  entered  against  it, 
and  the  judgment  was  paid,  it  was  held  by  the 
majority  of  the  court  not  to  be  an  obtaining  by  false 
pretences.5 

§  316.  Property  obtained.—  In  general,  the  property 
obtained  must  be  such  as  is  the  subject  of  larceny.6 

i  State  v.  Dorr,  33  Me.  498;  Com.  v.  Lincoln,  11  Allen  (Mass) 
233  ;  Regina  v.  Abbott,  1  Den.  C.  C.  273. 

2  Rex  v.  Codrington,  1  C.  &  P.  661 ;  State  v.  Chunn,  19  Mo.  233. 

3  Regina  v.  Earner,  14  Cox  C.  C.  497. 
*  Com.  v.  Springer,  8  Pa.  Co.  Ct.  115. 

5  Com.  v.  Harkins,  128  Mass.  79. 

6  Regina  v.  Robinson,  Bell  C.  C.  34. 


•2«J8  CRIMINAL   LAW. 

The  obtaining  a  credit  on  account,1  for  instance,  is 
not  within  the  statute,  unless  its  scope  is  sufficient 
to  embrace  such  a  transaction;  nor  is  the  procure- 
ment of  an  indorsement  of  payment  of  a  sum  of 
money  on  the  back  of  a  promissory  note,2nor  obtain- 
ing land,3  or  board  and  lodging.4  The  statutes  of 
the  several  Stales  must  control  in  this  particular. 

§317.  False  Pretences.  Larceny. —  The  distinction 
between  the  crimes  of  obtaining  money  by  false  pre- 
tences and  larceny  is  line  but  clear.  If  a  person  by 
fraud  induces  another  to  pari  with  the  possession 
only  of  goods,  this  is  larceny;  while  to  constitute 
the  former  offence  the  property  as  well  as  the  pos- 
session must  be  parted  with.5  In  larceny  the  owner 
has  no  intention  to  part  with  his  property,  and  the 
thief  cannot  give  a  good  title.  If  the  owner  delivers 
his  property  under  the  inducement  of  a  false  pre- 
tence, with  intent  to  part  with  his  property,  the  per- 
son who  obtains  it  by  fraud  may  give  a  good  title.6 
If  the  owner  is  tricked  out  of  the  possession,  and 
does  not  mean  to  part  with  the  property,  it  is  lar- 
ceny; but  if  he  is  tricked  out  of  both,  yet  means  to 
part  witli  his  property,  it  is  obtaining  property  by 
false  pretences.7 

But  even  though  the  property  does  not  pass  to  the 

1  Regina  >■.  Eagleton,  Dears.  515. 

-    St. 'lie  r.   M 'c,  1  j  Iowa,  412. 

8  State  v.  Burrows,  ll  [red,  (N.  C.)  477. 

4  State  v.  Black,  75  Wis.  490. 

■'  Regina  v.  Kilham,  L.  II.  1  C.  C.  261  ;  State  v.  Vickcry,  19  Tex. 
.'326;  People  v.  Johnson,  91   Cal.  265. 

8  Zink  v.  People,  77  X.  Y.  114. 

7  Regina  o.  Prince,  11  Cox  C.  C.  193.  See  also  the  rerj  elaborately 
considered  case  "f  Regina  v.  Middleton,  12  Cox  C.  C.  260,  417;  s.  c. 
L.  R.  2  C.  C.  38  ;   1  Green's  (  r.  Law  Rep    1. 


CHEATING.  299 

offender,  it  is  an  obtaining  by  false  pretences  if  the 
intent  was  to  pass  title  to  another;  and  the  crime 
seems  to  be  complete,  although  no  title  in  fact 
passed.1  Thus,  in  cases  where  the  defendant  ob- 
tained goods  by  pretending  to  be  sent  by  the  pur- 
chaser, the  crime  has  been  held  to  be  committed.2 

CHEATING. 

§  318.  Cheating  is  the  fraudulent  pecuniary  injury 
of  another  by  some  token,  device,  or  practice  of  such 
a  character  as  is  calculated  to  deceive  the  public.3 
Thus,  selling  bread  for  the  army,  and  marking  the 
weight  falsely  upon  the  barrels ; 4  or  selling  by  false 
weights 5  or  measures ; 6  or  playing  with  false  dice ;  " 
or  arranging  the  contents  of  a  barrel  so  that  the 
top  shall  indicate  that  it  contains  one  thing,  while 
in  fact  it  contains  another  and  worthless  thing, 
coupled  with  the  assertion  that  the  contents  are 
"  just  as  good  at  the  bottom  as  at  the  top " ; 8  or 
selling  a  picture  or  cloth  falsely  marked  with  the 
name  or  trade-mark  of  a  well  known  artist 9  or  man- 

1  Cleasbv,  B.,  iu  Kegina  v.  Middleton,  L.  R.  2  C,  C.  38,  G8.  See 
Com.  17.  Jeffries,  7  Allen  (Mass.)  548. 

2  Rex  v.  Adams,  Russ.  &  Ry.  225  ;  People  v.  Johnson,  12  Johns. 
(N.  Y.)  292.     See  Regina  v.  Butcher,  8  Cox  C.  C.  77. 

8  1  Hawk.  P.  C.  (8th  ed.)  318,  §  1.  See  also  Rex  v.  Wheatly,  2  Burr. 
1125;  s.  c.  1  Benn.  &  Heard's  Lead.  Cr.  Cas.  1,  and  notes,  as  to  dis- 
tinction between  mere  private  cheats  and  those  which  affect  the  public 
so  as  to  become  criminal. 

*  Respublica  v.  Powell,  1  Dall.  (Pa.)  47. 

5  Young  v.  Rex,  3  T.  R.  98. 

6  Rex  v.  Osborn,  3  Burr.  1697  ;  People  v.  Fish,  4  Parker  (N.  Y.) 
C.  R.  206. 

7  Leeser's  Case,  Cro.  Jac.  497 ;  Rex  v.  Maddocke,  2  Rolle,  107. 

8  State  v.  Jones,  70  N.  C.  75. 

9  Regina  v.  Closs,  D.  &  B.  C.  C.  460. 


300  CRIMINAL   LAW. 

ufacturer;1  or  the  use  of  false  papers,2  —  have  been 
held  to  be  cheats  at  common  law.  So  has  obtain- 
ing release  from  imprisonment  by  a  debtor  by 
means  of  a  forged  order  from  the  creditor  upon  the 
sheriff.8  So  it  has  been  held  that  obtaining  from 
an  illiterate  person  a  signature  to  a  note  different  in 
amounl  from  that  agreed  on,  by  false  reading,  is  a 
cheat.4  So,  doubtless,  would  be  obtaining  money  by 
begging,  under  the  device  of  putting  the  arm  in  a 
sling,  for  the  purpose  of  making  it  appear  that  it  had 
been  injured  when  it  had  not.  It  is  an  indictable 
offence  to  maim  one's  self  whereby  the  more  success- 
fully to  beg,5  or  to  disqualify  one's  self  for  service  as 
a  soldier.*3 

Mere  lying  by  words,  although  successful  in 
fraudulently  obtaining  the  goods  of  another,  without 
the  aid  of  some  visible  sign,  token,  device,  or  prac- 
tice, has  never  been  held  at  common  law  to  be  a 
cheating.7 

§  319.  Token.  Device.  —  A  token  is  a  thing  which 
denotes  the  existence  of  a  fact,  and  if  false,  and  cal- 
culated to  deceive  generally,  it  will  render  the  person 
who  knowingly  uses  it  for  the  purpose  of  inducing 
the  belief  that  the  fact  denoted  docs  exist,  to  the 

i  Rex  v.  Edwards,  1  Trem.  P.  C.  103. 

2  Serlested's  Case,  Latch,  202;  Com.  v.  Boynton,  2  Mass.  77; 
Com.  v.  Speer,  2  Va.  Cas.  65;  Lewis  v.  Com.,  2  S.  &  R.  (Pa.)  551  ; 
State  v.  Stroll,  l  Rich.  (S.  C.)  244. 

3  Rex  v.  Fawcett,  2  East  P.  C.  862. 

*  Hill  v.  State,  1  Yerg.  (Tenn.)  70;  1  Hawk.  P.  C.  (8th  ed.)  218,  §  L 
5  1  Inst.  127. 

B  3  Hum's  .1.  P.  (13th  ed.)  741,  s.  v.  Maim. 
"  Rex  -  Grantham,  H   Mod.  222;  Rex  v.  Osborn,  3  Burr.  1697; 
Com.  v.  Warren,  6  Mass.  72;   State  v.  Delyon,  1    Bay  (S.  C.)  353; 
r.  Babcock,  7  Johns.  (N.  Y.)  201. 


CHEATING.  301 

pecuniary  injury  of  another,  guilty  of  the  crime  of 
cheating.  A  business  card,  in  common  form,  pur- 
porting to  be  the  card  of  an  existing  firm,  which  is 
not  genuine,  and  asserts  as  fact  what  is  not  true,  is 
a  false  token. 1 

A  forged  order  for  the  delivery  of  goods  is  held  to 
be  a  token,  and  obtaining  goods  in  this  way  a  cheat, 
while  the  obtaining  them  by  the  mere  verbal  false 
representation  that  the  person  purporting  to  be  the 
signer  of  the  order  had  sent  for  them  would  not  be 
so.2  And  so  is  the  forged  check  of  another  than  the 
person  who  presents  it ; 3  but  not,  it  is  said,  his  own 
worthless  check  upon  a  bank  where  he  has  never  had 
a  deposit,4  this  being  merely  a  false  representation 
in  writing.  But  it  is  difficult  to  see  why  the  writing 
is  a  token  in  one  case  and  not  in  the  other.  Such 
subtle  distinctions  have  now  very  generally  been  ob- 
viated by  statutes  making  the  obtaining  of  money  by 
false  pretences  criminal.5 

False  personations  were  formerly  held  to  be  cheats,6 
and  even  falsehoods  as  to  personal  identity,  age,  or 
condition;  and  perhaps  would  now  be,7  where  stat- 
utes do  not  provide  for  such  frauds.  There  seems 
to  be  no  reason,  upon  principle,  why  one  who  falsely 
asserts  that  he  is  what  he  naturally  or  by  device 
falsely  appears  to  be,  should  not  be  held  guilty  of 
cheating,  as  availing  himself  of  a  visible  sign.8 

1  Jones  v.  State,  50  Ind.  473. 

2  Rex  v.  Thorn,  C.  &  M.  206;  Rex  v.  Grantham,  11  Mod.  222. 
8  Com.  v.  Boynton,  2  Mass.  77. 

4  Rex  v.  Jackson,  3  Camp.  370. 
6  See  False  Pretences. 

6  Rex  v.  Dupee,  2  Sess.  Cas.  11. 

7  Rex  v.  Hanson,  Say.  229.  8  i  Gab.  Cr.  Law,  204. 


302  CRIMINAL  LAW". 

§  320.  Swindling.  —  In  South  Carolina,  the  subject 
of  cheating  was  early  made  a  matter  of  statutory 
regulation,  providing  for  the  punishment  of  "any 
person  who  shall  overreach,  cheat,  or  defraud  by  any 
cunning,  swindling  acts  and  devices,  so  that  the 
ignorant  or  unwary  may  be  deluded  thereby  out  of 
their  money  or  property,"  under  which  obtaining 
horses  from  an  unsophisticated  person  by  means  of 
threats  to  prosecute  for  horse-stealing,  and  that  the 
pretended  owner  would  have  his  life  if  he  did  not 
give  them  up,  was  held  indictable.1  And  in  Georgia, 
obtaining  money  by  false  pretences  is  a  form  of 
swindling.2 

MALICIOUS    MISCHIEF. 

§  321.  Malicious  Mischief,  at  common  law,  was  con- 
fined to  injuries  to  personal  property.  Injuries  to 
the  realty  were  held  to  be  matters  only  of  trespass. 
And  such,  perhaps,  were  all  injuries  to  personal 
property,  short  of  their  destruction.3  But  such  in- 
juries, both  to  personal  and  real  property,  came  to 
be  of  such  frequency  and  seriousness  that  they  were 
made  matters  of  special  statute  regulation,  for  the 
purpose  of  providing  a  more  adequate  remedy  and  a 
severer  punishment  than  was  permitted  by  the  com- 
mon law.  And  from  the  time  of  Henry  VIII.  down 
to  the  present  time,  both  in  England  and  in  this  coun- 
try, a  great  number  of  statutes  have  been  passed 
touching  the  subject,   covering  such  forms  of  mis- 

1  State  17.  Van -han,  1  Bay  (S.  C.)  282. 
-  Code,  §  4587. 

:i  State  r.  Manuel,  72  X.  C.  201.     But  see  People  v.  Smith.  5  Cow. 
(X.  V.)  258  ;  Loomis  v.  Edgerton,  19  Wend.  (N.  Y.)  419. 


MALICIOUS  MISCHIEF.  303 

chief  as  then  existed  and  from  time  to  time  grew  out 
of  the  changing  circumstances  of  society,  till  now 
almost  every  form  of  such  mischief  is  made  the  sub- 
ject of  statute  regulation,  and  but  few  cases  arise 
which  are  cognizable  only  by  the  common  law. 
Nevertheless,  the  common  law  is  looked  to,  so  far  as 
it  is  applicable,  in  aid  of  the  interpretation  of  the 
statutes.  In  many  cases  the  dividing  line  between 
malicious  mischief  and  larceny  is  very  shadowy,  as 
where  there  is  a  total  destruction  of  the  property 
without  any  apparent  advantage  to  the  destroyer.1 
Indeed,  it  has  been  held  that  the  same  facts  might 
support  an  indictment  for  either  offence.2 

§  322.  Malice,  in  all  that  class  of  crimes  included 
under  the  general  category  of  "malicious  mischief," 
is  not  adequately  interpreted  by  the  ordinary  legal 
definition  of  malice ;  to  wit,  the  voluntary  doing  of 
an  unlawful  act  without  lawful  excuse.3  But  it  is  a 
more  specific  and  less  general  purpose  of  evil.  It  is 
defined  by  Blackstone  as  a  "  spirit  of  wanton  cruelty, 
or  black  and  diabolical  revenge."4  And,  in  a  case 
where  the  prosecution  was  for  wilfully  and  mali- 
ciously shooting  a  certain  animal,  the  court  held 
that  to  constitute  the  offence  the  act  must  be  not 
only  voluntarily  unlawful  and  without  legal  excuse, 
but  it  must  be  clone  in  a  spirit  of  wanton  cruelty  or 
wicked  revenge.5 

1  Ante,  §  290. 

2  State  v.  Leavitt,  32  Me.  183  ;  State  v.  Helmes,  5  Ired.  (N.  C.)  364 ; 
Snap  v.  People,  19  111.  80;  People  v.  Moody,  5  Parker  C.  R.  (N.  Y.) 
568;   Parris  v.  People,  76  111.  274. 

3  Ante,  §  33.  4  4  Bl.  Com.  244. 

5  Com.  r.  Walden,  3  Cush.  (Mass.)  558.  See  also  Goforth  v.  State, 
8  Humph.  (Tenn.)  37 ;  Branch  v.  State,  41  Texas,  622 ;  Duncan  v. 
State,  49  Miss.  331. 


304  CRIMINAL  LAW. 

Ami  such  has  been  held  to  be  the  true  interpreta- 
tion of  a  statute  which  punishes  mischief  done  "wil- 
fully or  maliciously,"1  and  even  where  it  punishes 
mischief  "wilfully"  done,— the  history  of  the  Legis- 
lation of  which  the  statute  formed  a  part  showing 
that  such  was  the  intent  of  the  Legislature.2  Doing 
or  omitting  to  do  a  thing,  knowingly  and  wilfully, 
implies  not  only  a  knowledge  of  the  thing,  but  a  de- 
termination, with  a  bad  intent  or  purpose;  to  doit, 
or  omit  doing  it.3 

There  is,  undoubtedly,  in  most  cases,  an  element 
of  personal  hostility  and  spite,  of  actual  ill  will  and 
resentment  towards  some  individual  or  particular 
community,  and  in  some  cases  this  is  held  to  be 
essential;4  but,  unless  restricted  to  these  by  statute, 
there  seems  to  be  no  reason  to  doubt  that  wanton 
cruelty  or  injury  to  or  destruction  of  property,  com- 
mitted under  such  circumstances  as  to  indicate  a 
malignant  spirit  of  mischief,  indiscriminate  in  its 
purpose,  as  where  one  goes  up  and  down  the  street 
thiowing  a  destructive  acid  upon  the  clothes  of  such 
as  may  be  passing  to  and  fro,  for  no  other  purpose 
than  to  do  the  mischief,  would  be  held  to  constitute 
the  offence.6  Yet  it  has  been  held  that  proof  of 
malice  towards  a  son  is  not  admissible  on  an  indict- 

1  Com.  v.  Williams,  110  Mass.  401. 

-  State  v.  Clark,  5  Dutch.  (N.  J.)  96. 

a  Felton  v.  United  States,  96  U.  S.  699 ;  Com.  v.  Kneeland,  20  Tick. 
(Mass.)  206. 

*  State  v.  Robinson,  3  Dev.  &  Batt.  (N.  C.)  130  ;  Hobson  v.  State, 
44  Ala.  380;  State  v.  Ncwby,  64  N.  C.  23;  State  v.  Tierce,  7  Ala. 
728. 

6  State  o.  Laiulroth.  2  Car.  L.  R.  446  ;  Moaely  V.  State,  28  Ga.  190; 
Duncan  v.  State,  49  Miss.  331. 


MALICIOUS  MISCHIEF.  305 

ment  for  malicious  injury  to  the  property  of  the 
father;1  while,  on  the  other  hand,  it  has  been  held 
that  proof  of  malice  towards  a  bailee  is  admissible 
on  an  indictment  for  injury  of  property  described  in 
the  indictment  as  belonging  to  the  bailor.2  Mere 
malice  towards  the  property  injured,  however,  as 
where  one  injures  a  horse  out  of  passion  or  dislike  of 
the  horse,  is  not  sufficient  to  constitute  the  offence ; 3 
but  wanton  and  cruel  mischief  to  an  animal  from  a 
bad  mind,  without  personal  ill  feeling,  is  malicious 
mischief.4 

In  order  to  bring  the  act  within  the  purview  of  the 
law  against  malicious  mischief,  it  must  appear  that 
the  mischief  is  done  intentionally,  and  perhaps  it 
is  not  too  much  to  say  for  the  purpose  of  doing  it, 
and  not  as  incidental  to  the  perpetration  of  some 
other  act,  or  the  accomplishment  of  some  other  pur- 
pose, however  unlawful.  Thus,  where  one  breaks  a 
door  or  window  to  gratify  his  passion  for  theft,  or 
his  lust,  or  while  he  is  engaged  in  an  assault,  or  if 
the  injury  be  done  in  the  pursuit  of  pleasure,  as  in 
hunting  or  fishing,  or  for  the  protection  of  his  crops, 
or  in  any  other  enterprise,  lawful  or  unlawful,  where 
the  injury  is  not  the  end  sought,  but  is  merely  inci- 
dental thereto,  the  act  does  not  constitute  the  offence 
of  malicious  mischief.5      And  where  the   injury  is 

1  Northcot  v.  State,  43  Ala.  330. 

2  Stone  v.  State,  3  Heisk.  (Tenn.)  457. 

3  2  East  P.  C.  1072;  State  v.  Wilcox,  3  Yerger  (Tenn.)  278; 
Shepherd's  Case,  2  Leach  Cr.  C.  (4th  ed.)  539. 

4  State  v.  Avery,  44  N.  H.  392;  Mosely  v.  State,  28  Ga.  190. 

6  Regina  v.  Pembliton,  12  Cox  C.  C.  607  ;  s.  c.  2  Green's  C.  L.  R. 
19;  State  v,  Clark,  5  Dutch.  (N.  J.)  96;  Wright  v.  State,  30  Ga.  325; 
State  v.  Bush,  29  Ind.  110,  Duncan  v.  State,  49  Miss.  331. 

20 


300  CRIMINAL  LAW 

done  under  a  supposed  right,  claimed  in  good  faith, 
there  is  no  malice  in  the  sense  of  the  law.1 

§  323.  Malice  inferable  from  Circumstances. —  Direct 
proof  of  express  malice  by  actual  threats  is  not 
necessary,  but  it  may  be  inferred  from  the  attendant 
facts  and  circumstances.2 


RECEIVING    STOLEN    GOODS. 

§  324.  Receiving  Stolen  Goods,  knowing  them  to  be 
stolen,  was  originally  an  accessorial  offence,  of  which 
the  receiver  could  only  be  convicted  after  the  convic- 
tion of  the  thief;  but  it  long  since  became,  both  in 
England  and  in  this  country,  a  substantive  offence, 
trial de  separately,  and  without  reference  to  the  crime 
of  the  principal.3 

Receiving  stolen  goods,  knowing  them  to  he  stolen, 
for  the  purpose  of  aiding  the  thief  in  concealing 
them  or  in  escaping  with  them,  is  as  much  an  of- 
fence as  if  the  receiving  he  done  with  the  hope  of 
obtaining  a  reward  from  the  owner,  or  other  pecu- 
niary  gain  or   advantage.4       Bui    there   must   be  a 

i  State  v.  Flynn,  28  [owa,  26 ;  Sattler  v.  People,  59  111  68;  State 
v    Newkirk,  4'.t  Mo.   S4  ;   State  »    Hause,  71    N.  C.  518;   Goforih  v 
State,  8  Humph   (Tenn.)  .'S7  ;  Palmer  v.  State,  45  [nd.  388  ;   Regina  v. 
,rd,  C.  &  M.  602. 
Lte  v  Pierce,  7  Ala.  728  .  State  v.  McDermott,  36  Iowa,  107. 

3  Regina  u  Caspar,  '_'  Moo.  C.  C.  101;  -  c.  2  Leading  Cr.  ('as 
4-.I  and  note;  Regina  v.  Hnghes,  B  <'<>x  C.  C  278;  Com.  <••  King, 
9  Cusb  (Mass.)  284;  Loyd  v.  State,  42  Ga.  221 ;  State  v.  Coppenburg, 
2  Strobh.  (S.  C.)  273;  State  i    Weston,  9  Conn.  527 

i  People  v  Wiley,  3  Hill  (N.  Y.)  194;  Stair  v  Rushing,  69  N  C. 
29;  Com  d  Bean,117Mass  141;  Rex  v.  Davis, 6 C  &P  177;  People 
v.  Caswell,  21  Wend.  (N.  Y.)  86;  State  v.  Hazard,  2  R.  L  474;  Hex  v. 
Richardson,  »',  C.  &  1'.  335. 


RECEIVING  STOLEN  GOODS.  307 

fraudulent  intent  to  deprive  the  true  owner  of  his 
interest  in  them.1 

§  325.  Receiving.  —  To  constitute  one  a  receiver, 
the  stolen  goods  need  not  have  come  into  his  actual 
manual  possession.  It  is  enough  if  they  have  come 
under  his  observation  and  control,  as  where  a  person 
allows  a  trunk  of  stolen  goods  to  be  placed  on  board 
a  vessel  as  part  of  his  luggage.2  But  there  must  be 
such  control  as  is  at  least  equivalent  to  constructive 
possession.3  If  one  finds  property  which  he  has 
reason  to  believe  was  stolen,  and  seeks  to  turn  it  to 
his  pecuniary  advantage,  he  may  be  convicted  of  re- 
ceiving stolen  goods.4  The  owner  may  be  a  receiver 
as  well  as  a  thief,  if  the  goods  be  received  from  one 
who  stole  them  from  the  owner's  bailee.5  But  as 
the  wife  cannot  under  any/circumstances  steal  from 
the  husband,  one  who  receives  from  her  cannot  be 
convicted  of  receiving  stolen  goods.6 

§  326.  When  Goods  cease  to  be  Stolen  Goods.  —  The 
crime  can  be  committed  so  long  only  as  the  goods 
continue  to  have  the  character  of  stolen  goods. 
Where  they  have  come  back  into  the  control  of  the 
owner,  but  he,  in  order  to  detect  the  thief  or  the  re- 
ceiver, takes  measures  to  have  them  offered  to  the 
receiver,  they  have  ceased  to  be  stolen  goods,   and 

1  Rice  v.  State,  3  Heisk.  (Tenn.)  215  ;  People  v.  Johnson,  1  Parker 
C.  R.  (N.  Y.)  564 ;  Pelts  v.  State,  3  Blackf.  (Ind.)  28. 

2  State  v.  Scovel,  1  Mill  (S.  C.)  274;  State  v.  St.  Clair,  17  Iowa, 
149  ;  Regina  v.  Smith,  6  Cox  C.  C.  554 ;  Regina  v.  Rogers,  37  L.  J. 
n.  s.  M.  C.  83. 

3  Regina  v.  Wiley,  4  Cox  C.  C.  412. 

*  Com.  v.  Moreland,  27  Pitts.  L.  J.  (Pa.),  No.  45. 

5  People  i'.  Wiley,  3  Hill  (N.  Y.)  194;  ante  §  155. 

6  Regina  c.  Kenny,  2  Q.  B.  D.  307. 


308  CRIMINAL    LAW. 

the  receiver  cannol  be  convicted.1  Nor  are  the  goods 
to  lie  treated  as  stolen  excepl  in  a  jurisdiction  where 
the  Larceny  can  be  inquired  into;  consequently,  where 
Is  are  stoleD  in  one  jurisdiction  and  broughl  into 
another,  the  receiver  cannol  be  convicted  in  the  lat- 
ter jurisdiction.2  In  those  jurisdictions,  however, 
where  a  thief  who  himself  brings  into  the  State 
goods  stolen  outside  i(  may  be  convicted  of  larceny, 
one  who  receives  from  the  thief  goods  stolen  outside 
may  be  convicted  of  receiving,  since  the  g Is  con- 
tinue to  be  stolen  goods.3 

§327.  Knowledge.  —  The  receiver  need  not  have 
been  absolutely  certain  that  the  goods  were  stolen; 
it  is  enough  if  he  had  reasonable  grounds  for  believ- 
ing them  to  be  stolen.'  And  if  he  had  knowledge  of 
the  circumstances,  he  need  not  have  known  that  in 
law  they  were  sufficient  to  constitute  larceny.6  Bui 
if,  knowing  the  circumstances,  he  believed  them  not 
to  constitute  a  crime  at  all,  the  (dement  of  guilt) 
knowledge  is  lacking,  and  the  receiver  cannot  be 
com  icted.6 

^  :')_>s;.  Evidence.  —  Recent  possession,  without  any 
evidence  that  the  property  stolen  had  been  in  the 
possession  of  some  person  other  than  the  owner 
before  it  came  to  the  alleged  receiver,  or  other  cir- 
cumstances to   rebut    the   presumption  of  larceny,   is 

1   Regina  v.  Dolan,  6  Cox  C.  C.  149;  Regina  v.  Schmidt,  I..  R.  I 
('.  (\  15;  ri.it. m1  States  v.  De  Bare,  «',  Bias.  (U.  S.  Dist.  Ct.)  358. 
-  Rex  v.  Prowes,  t  Moo.  C.  C.  349 ;  Regina  v.  Madge,  9C.  &  P.  29. 
a.  v,  Andrews,  2  Mass.   14;  People  v.  Wiley,  3  Bill  (N.  Y.) 
194. 

4  Regina  v.  White,  l  V.  &  V  c,c,r>. 
I  om   i    Le  mard,  l  10  Mass.  17:3. 
'   Regina  v.  Adams,  l  F.  &  1     36;  Com.  v.  Leonard,  140  Mass.  47:3. 


FORGERY.  309 

rather  evidence  of  larceny  than  of  receiving  stolen 
goods.1  And  evidence  of  the  possession  of  other 
stolen  goods  cannot  be  given  to  show  that  the  re- 
ceiver knew  the  particular  goods  in  question  to  be 
stolen.2 

FORGERY. 

§  829.  Forgery  is  "the  fraudulent  making  or  alter- 
ation of  a  writing  to  the  prejudice  of  another  man's 
right,"3  —  the  word  "writing"  including  printed 
and  engraved  matter  as  well,4  but  not  a  painting 
with  the  name  of  the  artist  falsely  signed,5  nor  a 
wrapper  about  a  box  of  baking-powder.6  The  instru- 
ment forged,  it  is  generally  held,  must  purport  upon 
its  face  in  some  way  to  prejudice  the  legal  rights  or 
pecuniary  interest  of  the  supposed  signer,  or  of  the 
person  defrauded.  Thus,  a  recommendation  of  one 
person  to  another  as  a  person  of  pecuniary  responsi- 
bility, may  be  the  subject  of  forgery."  And  it  has 
been  held  in  England  that  the  false  making  of  a  let- 
ter of  recommendation,  whereby  to  procure  an  ap- 
pointment as  school-teacher,8  or  as  constable,9  —  or  a 
certificate  of  good  character,  whereby  to  enable  the 
person  in  whose  favor  it  is  made  to  obtain  u  certifi- 
cate  of  qualification  for  a  particular  service,  —  is 

1  Rex  r.  Cordy,  cited  in  note  to  Pomeroy's  edition  of  Archbold  Cr. 
Pr.  &  PI.  vol.  ii.  p.  479  ;  Regina  v.  Langmead,  9  Cox  C.  C.  464. 

2  Regina  ».  Oddy,  5  Cox  C.  C.  210. 

3  4  Bl.  Com.  247. 

4  Com.  v.  Ray,  3  Gray  (Mass.)  441. 

5  Regina  v.  Closs,  7  Cox  C.  C.  494. 
«  Regina  v.  Smith.  8  Cox  C.  C.  32. 

'  State  v.  Ames,  2  Greenl.  (Me.)  365.     ' 

8  Regina  v.  Sharman,  Dears.  C.  C.  285. 

9  Regina  v.  Moah,  D.  &  B.  C.  C.  550. 


310  CRIMINAL  LAW. 

an  indictable  forgery  at  common  law;1  —  extreme 
cases,  no  doubt,  and  founded  perhaps  on  an  old 
statute  (33  Hen.  VIII.  c.  1,  —  not,  however,  bo  far  as 
appears  by  the  reports,  referred  to  in  either  case), 
whereby  cheating  by  false  "privy  tokens  and  coun- 
terfoil letters  in  other  men's  names"  is  made  an  in- 
dictable offence.  But  the  false  making  of  a  mere 
recommendation  of  one  person  to  the  hospitalities  of 
another,  with  a  promise  to  reciprocate,  has  been  held 
in  this  country  to  he  no  forgery.2  Whether,  in  a  case 
precisely  analogous  to  the  English  cases  jusl  referred 
to,  our  courts  would  follow  them,  remains  to  he  seen. 
Undoubtedly  they  would,  wherever  a  substantially 
similar  statute  may  be  found/5  The  " prejudice  to 
another  man's  right  "  may  apply  as  well  to  the  party 
imposed  upon  as  to  the  person  whose  name  is  forged. 
As  to  the  latter,  no  doubt  the  writing  must  imporl 
his  legal  liability  in  some  way.  But  as  to  the 
former,  if  he  is  defrauded  or  imposed  upon,  or  the 
forgery  is  made  with  fraudulent  intent,  the  act 
seems  to  come  clearly  within  the  definition.  It  is 
certainly  to  be  questioned  whether  the  law  will  allow 
a  man  to  live  upon  the  hospitalities  of  his  fellows, 
which  He  has  obtained  by  forged  letters  of  recom- 
mendation. The  forgery  is  not  the  less  a  forgery 
because  it  is  made  use  of  as  a  false  pretence.4 

§  330.  Forgery  must  be  Material.  — The  false  mak- 
ing, however,  must  be  of  some  instrument  having 
pecuniary  importance,  or  its  alteration  in  some 
material  respect. 

1  Regina  ,..  Tostaack,  J  Den.  C.  C.  492. 

2  Waterman  v.  People,  67  III.  91. 

8  Com.  r.  Hartnett,  3  Gray  (Mass.)  450. 

1  i  om.  v  <  !oe,  1 1.*>  Mass.  481  ;  s.  c.  2  Green's  C.  L.  R.  292. 


FORGERY.  311 

A  very  slight  alteration,  however,  may  be  material. 
It  has  been  held  in  England  that  the  alteration  of 
the  name  of  the  person  to  whom  a  note  is  payable, 
the  alteration  being  from  the  name  of  an  insolvent 
to  a  solvent  firm,1  and  in  this  country,  that  the 
alteration  of  the  name  of  the  place  where  payable,  is 
material.  And  alteration  by  erasure  constitutes  the 
offence.2  So  does  any  other  erasure,  or  detachment 
from  or  leaving  out,  as  from  a  will,  of  a  material 
part  of  the  instrument,  whereby  its  effect  is  changed.3 
If  the  instrument  do  not  purport  to  be  of  any  legal 
force,  whether  its  invalidity  be  matter  of  form  or 
substance,  —  as  if  it  be  a  contract  without  considera- 
tion,4 or  a  will  not  witnessed  by  the  requisite  number 
of  witnesses,'5  or  a  bond  or  other  instrument  created 
and  defined  by  statute,  but  not  executed  conformably 
to  the  statute,6  —  then  the  false  making  or  alteration 
is  not  a  forgery.  The  addition,  moreover,  of  such 
words  as  the  law  would  supply,7  or  of  a  word  or 
words  otherwise  immaterial,  and  such  as  would  not 
change  the  legal  effect  of  the  instrument, —  as  where 
the  name  of  a  witness  is  added  to  a  promissory  note, 
in  those  States  where  the  witness  is  immaterial,  — 
would  not  constitute  the  offence ; 8  though,  doubtless, 
in  those  States  where  such  addition  would  be  mate- 

1  Rex  v.  Treble,  2  Taunt.  328 ;  State  v.  Robinson,  1  Harr.  (N.  J.)  507. 

2  White  v.  Hass,  32  Ala.  430. 

3  State  v.  Stratton,  27  Iowa,  420;  Combes's  Case,  Noy,  101. 

4  People  v.  Shall,  9  Cow.  (N.  Y.)  778. 

6  Rex  v.  Wall,  2  East  P.  C.  953  ;  State  v.  Smith,  8  Yerg  (Tenn.) 
150. 

G  Cunningham  v.  People,  4  Hun  (N.  Y.)  455. 

7  Hunt  v.  Adams,  6  Mass.  519. 

8  State  v.  Gherkin,  7  Ired.  (N.  C.)  206. 


312  CRIMINAL   LAW. 

rial,  by  making,  as  in  Massachusetts,   the  security 

good  for  twenty  instead  of  six  years,  such  an  altera- 
tion would  be  held  a  forgery.  Nor,  ii  seems,  would 
the  alteration  of  the  marginal  embellishments  or 
marks  of  a  bank-note,  not  material  to  the  validity 
of  the  note,  constitute  forgery.1 

If  the  instrument  forged  does  uot  appear  upon  its 
face  to  have  any  Legal  or  pecuniary  efficacy,  it  must 
be  shown  by  proper  averments  in  the  indictment  how 
it  may  have.2 

§331.  Legal  Capacity.  Fictitious  Name.  —  It  is  not 
essential  thai  the  person  in  whose  name  the  instru- 
ment purporting  to  be  made  should  have  the  legal 
capacity  to  act,  nor  that  the  person  to  whom  it  is 
directed  should  be  hound  to  act  upon  it;  if  genuine, 
or  should  have  a  remedy  over."  Indeed,  the  forged 
name  may  be  that  of  a  fictitious  person,4  or  of  one 
deceased,5  or  of  an  expired  corporation.0  Bui  sign- 
ing to  a  note  the  name  of  a  firm  which  in  fact  does 
not  exist,  one  of  the  names  in  the  alleged  firm  being 
that  of  the  signer  of  the  note,  is  not  forgery."  Even 
the  signing  one's  own  name,  it  being  the  same  as 
that  of  another  person,  the  intent   being  to  deceive 

i  State  v.  Waters,  3  Brev.  (S.  ('.)  507. 

2  State  v.  Wheeler,  L9  Minn.  98;  State  v.  Pierce,  8  Iowa,  231; 
Com.  v.  Raj ,  3  Gray  (Mass.)  441  ;  People  v.  Tomliuson,  35  Cal.  503; 
post,  §  334. 

■■'■  People  v.  Krummer,  4  Park.  C.  R.  (N.  V.)  217  ;  State  v.  Kimball, 

'>n  Me.  409. 

4  Rex  v.  Bolland,  1  Leach  C.  C.  (4th  ed.)  83  ;  Hex  v.  Marshall,  Russ. 
S  Ry.  75;  Sasser  v.  State,  13  Ohio,  453 ;  People  v.  Davis,  21  Wend 
(X.  V.)  309. 

6  Henderson  v.  State,  14  Tex.  503. 

«  Bnckland  v.  Com.,  8  Leigh  (Va.)  732. 

7  Cum.  v.  Baldwin,  11  Cray  (Mass.)  197. 


FORGERY.  313 

and  defraud,  by  using  the  instrument  as  that  of  the 
other  person,1  may  constitute  the  offence.  But  the 
alteration  of  .one's  own  signature  to  give  it  the  ap- 
pearance of  forgery,  though  with  a  fraudulent  intent, 
is  not  forgery.2  And  where  two  persons  have  the 
same  name  but  different  addresses,  and  a  bill  is 
directed  to  one  with  his  proper  address,  but  is  re- 
ceived by  the  other,  who  accepts  it,  adding  his  proper 
address,  the  acceptance  is  nut  a  forgery.3 

§  332.  The  Alteration  may  be  by  indorsing  another 
n;i me  on  the  back  of  a  promissory  note,4  or  by  falsely 
filling  up  an  instrument  signed  in  blank,  as  by  in- 
serting or  changing  the  words  of  a  complete  instru- 
ment,5 or  by  writing  over  a  signature  on  a  piece  of 
blank  paper,6  or  by  tearing  off  a  condition  from  a 
non-negotiable  instrument,  whereby  it  becomes  so 
altered  as  to  purport  to  be  negotiable,7  or  by  pasting 
one  word  over  another,8  or  by  making  the  mark  in- 
stead of  a  signature,9  or  by  photographing.10  So  the 
alteration  of  an  entry,  or  making  a  false  entry,  by  a 
clerk  in  the  books  of  his  employer,  with  intent  to 
defraud,  is  a  forgery.11     And  so  is  the  obtaining  by 

1  People  v.  Peacock,  6  Cow.  (N.  Y.)  72;  Mead  v  Young,  4  T.  R 
28;  Com  v.  Foster,  114  Mass.  311. 

*  Brittain  v.  Bank  of  London,  3  F.  &  F.  465. 

8  Rex  v.  Webb,  3  B.  &  B.  228. 

4  Powell  v.  Com  ,  11  Gratt.  (Va.)  822. 

8  State  v.  Kroeger,  47  Mo.  552. 

6  Caulkins  v.  Whisler,  29  Iowa,  495. 

7  State  v.  Stratton,  27  Iowa,  420  ;  Benedict  v.  Cowden,  49  N.  Y. 
396. 

s  State  v.  Robinson,  1  Harr.  (N.  J  )  507. 

9  Rex  v.  Dunn,  2  East  P.  C.  962. 

10  Regina  v.  Rinaldi,  9  Cox  C.  C.  391. 

11  Regina  v.  Smith,  L.  &  C.  C.  C.  168;  Biles  v.  Com.,  32  Pa.  529. 


314  CRIMINAL  LAW 

the  grantee  From  the  grantor  his  signature  to  a  deed 
different  from  thai  which  had  hern  drawn  up  and 
read  to  the  grantor,]  or  by  the  promisee  from  the 
promisor  his  signature  to  a  note  for  a  greater  amount 
than  had  been  agreed  upon.-  And  in  England  it  has 
been  quite  recently  held,  upon  much  consideration, 
that  where  a  man  who  had  deeded  away  his  property 
afterwards,  by  another  deed  falsely  antedated,  con- 
veyed to  his  son  a  part  of  the  same  property.  In-  was 
guilty  of  forgery ; 3  —  a  doctrine  which,  however,  lias 
not  only  not  been  adopted,  hut  has  been  doubted,  in 
this  country,4  where  the  received  doctrine  is,  that  a 
writing  in  order  to  he  the  subject  of  forgery  must 
in  general  he,  or  purport  to  he.  the  act  of  another; 
or  it  must  at  the  time  be  the  property  of  another;  or 
it  must  he  some  writing  under  which  others  have 
acquired  rights,  or  have  become  liable,  and  in  which 
these  rights  and  liabilities  are  sou-lit  to  he  changed 
by  the  alteration,  to  their  prejudice,  and  without  their 
consent.5  Under  this  rule  it  seems  that  the  maker 
of  an  instrument  may  lie  guilty  of  forgery  by  alter- 
ing it  after  it  has  been  delivered  .and  becomes  the 
property  of  another;6    hut  the  alteration  of  a   draft 

by  the  drawer,  after  it  has  1 n  accepted  .and  paid 

and  returned  to  him.  is  no  forgery,  hut  rather  the 
drawing  of  a  new  draft.7 

1  State  v.  Slmrtliff,  18  Me.  368. 

2  Com    /•.  Sankey,  22  Pa.  390. 

R(  gina  '■.  Ritson,  L.  R.  1  C.  C.  200. 
1  2  Bish.  Cr.  Law,  §§  584,  585 

»  State  v   Young,  46  N    II.  266;  Cam.  v  Baldwin,  11  Crav  (Mass.) 
107 

■  suit.'  ;•.  Yonng,  to  \.  n  266;  Com.  '•.  Mycall,  2  Mass  136. 
7  People  v  Fitch,  l  Wend  (X.  V  )  198. 


FORGERY  315 

§  333.  Filling  Blanks.  —  One  may  be  guilty  of  for- 
gery by  merely  filling  up  blanks  without  authority. 
Thus,  if  an  employer  leaves  with  a  clerk  checks 
signed  in  blank,  with  authority  to  fill  them  only  for 
a  certain  purpose,  and  he  fills  them  for  another  pur- 
pose, he  is  guilty  of  forgery ;  but  if  there  is  general 
authority  to  fill  the  blanks,  it  is  no  forgery,  even  if 
they  are  filled  for  an  illegal  purpose.1 

§  334.  Intent  to  defraud  is  a  necessary  element  in 
the  crime  of  forgery.  But  it  is  not  necessary  that 
the  fraud  should  become  operative  and  effectual,  so 
that  some  one  is  in  fact  defrauded,  nor  need  the  in- 
tent be  to  defraud  any  particular  person,  or  other 
than  a  general  intent  to  defraud  some  person  or 
other.2  An  alteration,  therefore,  by  one  party  to  an 
instrument,  to  make  it  conform  to  what  was  mutu- 
ally agreed  upon,  being  without  fraudulent  intent, 
lacks  the  essential  quality  of  fraud.3 

The  lack  of  similitude  between  a  genuine  and  a 
forged  signature  is  immaterial,  except  as  bearing 
upon  the  question  of  intent.  The  fact  of  no  resem- 
blance at  all  gives  rise  to  the  inference  that  there 
was  no  fraudulent  intent.  But  if  the  signature  be 
proved,  the  presumption  of  fraud  arises,  whether 
there  is  any  resemblance  or  not  between  the  genuine 
and  forged  signatures.4 

1  People  v.  Reinitz,  6  N.  Y.  Suppl.  672 ,  People  v.  Dickie,  17  N.  Y. 
Suppl.  51. 

2  Com.  v.  Ladd,  15  Mass.  526,  Rex  v.  Ward,  2  Ld,  Raym.  1461; 
Henderson  ;;.  State,  14  Tex.  503. 

3  Pauli  v.  Com.,  89  Pa.  432. 

4  Mazagora's  Case,  R.  &  R.  291,  Com.  v.  Stephenson,  11  Cnsh. 
(Mass.)  481 ;  Regina  v.  Jessop,  D.  &  B.  C.  C  442  ;  Regina  v.  Coulson, 
1  Den.  C.  C.  592  ;  State  v.  Anderson,  30  La.  Ann.  557. 


316  CRIMINAL  LAW. 

And  even  if  the  resemblance  lie  close  and  calcu- 
lated to  deceive,  the  ac1  may  be  shown  to  have  been 
done  withoul  any  fraudulent  intent.1  As  the  essence 
of  forgery  is  the  intent  to  defraud,  the  mere  imita- 
tion of  another's  writing,  or  the  alteration  of  an 
instrument  whereby  no  person  can  be  pecuniarily 
injured,  does  not  come  within  the  definition  of  the 
offence.  And  if  this  probability  of  injury  does  not 
appear  on  the  fact1  of  the  instrument,  it  must  be 
shown  in  the  indictment,  by  proper  averments,  how 
the  injury  may  happen.  Thus,  the  alteration  of  the 
date  of  a  check  in  a  check-book  does  not  of  itself 
import  injury  to  any  one,  and  in  order  to  make  it 
the  foundation  of  an  indictment,  if  must  lie  set  forth 
in  the  indictment  how  this  may  happen.2  Nor  does 
an  alteration  of  an  instrument  to  the  prejudice  alone 
of  him  who  alters  constitute  forgery;  as  when  the 
holder  and  payee  of  a  promissory  note  afters  the 
amount  payable  to  a  smaller  sum.3 

§  335.  Uttering.  —  A  forgery  is  uttered  when 
there  is  an  attempt  to  make  use  of  it  by  bring- 
ing it  to  the  knowledge  of  an  innocenl  person.4 
This  use  may  be  of  any  sort;  pledging  is  utter- 
ing,6 and  so  is  merely  showing  a  receipted  bill  to 
gain  credit.6  But  showing  to  an  accomplice  is  not 
uttering." 

'  Regina  <■.  Parish,  8  C.  &  P.  94;  P»ex  v.  Harris,  7  C.  &  P.  428; 
Coin  v.G lenongh,  Thatch  Cr  ('as.  (Mass)  132, 

2  Com  v.  Mulhoiland  (Pa  ).  :.  Weekly  Notes  of  Cases,  208. 

3  1  Hawk   P.  C.  (8th  ed  )  264,  §  4.     See  also  Counterfeiting. 
*   Regina  0.  Radford,  1  Den.  < '   ( '.  59 

&  Thnrmond  0.  State,  8  S    W.  473:  9.  c  25  Tex.  App.  366. 
';   Regina  i\  I<m,  2  Den.  ('.  C   475 
"  Regina  v,  Heywood,  2  C.  &  K  352. 


COUNTERFEITING.  31" 

Where  a  forgery  is  sent  into  another  jurisdiction 
by  mail  or  other  innocent  agent,  and  is  shown 
there,  there  would  seem  to  be  an  utterance  in  both 
jurisdictions.1 

COUNTERFEITING. 

§  836.  Counterfeiting  is  the  making  of  a  false  coin 
in  the  similitude  of  the  genuine,  with  intent  to  de- 
fraud. It  is  a  species  of  forgery,  and  its  distin- 
guishing characteristic  is  that,  there  must  be  some 
appearance  of  similitude  to  the  thing  counterfeited;2 
whereas  in  forgery  no  such  similitude  is  requisite,3 
and  no  genuine  instrument  may  have  ever  existed. 
Whether  there  is  such  similitude  seems  to  be  a  ques- 
tion of  fact  for  the  jury. 

Before  the  adoption  of  the  Constitution  of  the 
United  States  the  offence  of  counterfeiting  was  pun- 
ishable in  the  several  Colonies  under  the  common 
law;  but  by  the  adoption  of  that  Constitution  the 
power  to  coin  money  was  prohibited  to  the  States, 
and  reserved  to  the  United  States.  Strictly  speak- 
ing, therefore,  there  is  no  such  offence  as  counter- 
feiting at  common  law  in  this  country ;  but  it  is 
wholly  an  offence  created  by  the  statutes  of  the 
United  States.  But  the  offence  is  punishable  as  a 
cheat,  or  an  attempt  to  cheat,  by  the  States  as  well ; 
and,  in  point  of  fact,  most  of  the  States,  if  not  all, 

1  Regina  v.  Taylor,  4  F.  &  F.  511  ;  Ptegina  v.  Finkelstein,  16  Cox 
C.  C.  107. 

2  Rex  v.  Welsh,  1  East  P.  C.  164;  United  States  v.  Marigold,  9 
How.  (U.  S.)  560,  per  Daniel,  J. ;  United  States  v.  Morrow,  4  Wash. 
C.  Ct.  733 ;  Rex  r.  Varley,  2  W.  Bl.  682. 

3  See  ante,  Forgery. 


318  CRIMINAL   LAW. 

have   statutes   against  the  making  and   uttering   of 
counterfeit  coin.1 

Punished  at  common  law  as  a  cheat,  it  is  a 
misdemeanor,    unless    clearly    made    a    felony    bj 

statute.2 

1  Fox  v.  Ohio,  5  How.  (U.  S.)  410;  United  States  v.  Marigold,  it 
How.  (U.  S.)  500;  Moore  v.  Illinois,  U  How.  (U.  S.)  13;  State  v. 
MePherson,  9  Iowa,  53. 

-  Wilson  i.  State,  1  Wis.  184. 


PIRACY.  319 


CHAPTER   IX. 

MAEITIME   OFFENCES. 
§  338.   Piracy.  |  §  339.   Barratry. 

§  337.  The  common  law  punishes  certain  acts 
committed  upon  the  high  seas,  when,  if  committed 
upon  land,  the  acts  would  not  be  criminal,  or  would 
be  crimes  of  a  different  nature.  The  most  important 
crimes  of  this  nature  are  piracy  and  barratry. 

PIRACY. 

§  338.  "  Piracy  at  the  common  law  consists  in 
committing  those  acts  of  robbery  and  depredation 
upon  the  high  seas  which,  if  committed  on  the  land, 
would  have  amounted  to  felony  there. "  1  It  was 
originally  punishable  at  common  law  as  petit  trea- 
son, but  not  as  a  felony;  and  later,  by  statute,2  it  is 
made  triable  according  to  the  course  of  the  common 
law,  subject  to  the  punishment  —  capital  —  provided 
by  the  civil  law.3  Under  the  law  of  nations,  (which 
is  part  of  the  common  law,)  it  may  be  committed  by 
an  uncommissioned  armed  vessel  attacking  another 
vessel,4  or  by  feloniously  taking  from  the  possession 

1  1  Russ.  on  Crimes,  bk.  2,  c.  8,  §  1. 

2  28  Hen.  VIII.  c.  15. 

3  1  Russ.  on  Crimes,  bk.  2,  c.  8,  §  1.     This  statute  has  been  repealed 
by  Stat.  1  Vict.  c.  88,  §  1. 

4  Savannah  Pirates,  Warburton's  Trial,  370. 


32Q  CRIMINAL  LAW. 

of  the  master  the  ship  or  its  furniture,  or  the  goods 
on  board,  whether  the  taking  be  done  by  strangers, 
or  by  the  crew  or  passengers  of  the  vessel.1 

Robbery  on  board  a  vessel  sailing  under  a  foreign 
flag  is  not  piracy,2  bul  the  category  of  piratical  acts 
lias  been  much  extended  by  statuti .:; 

As  the  offence,  if  committed  at  all,  is  committed 
on  the  high  seas,  that  is,  out  of  the  jurisdiction  of 
the  States,  the  adjudications  and  judicial  derisions 
in  this  country  have  been  mostly  confined  to  c 
arising  under  the  statutory  jurisdiction  of  the  courts 
of  the  national  government.4 

A  pirate  is  an  outlaw,  and  may  be  captured  and 
brought  to  justice  by  the  ship  of  any  nation."' 

A  commission  purporting  to  be  issued  by  an  un- 
known government,  or  by  a  province  of  an  unac- 
knowledged nation,  affords  no  protection.6 

BARRATRY. 

§  339.  Barratry  is  a  maritime  offence,  and  consists 
in  the  wilful  misconduct  of  the  master  or  mariners, 

1  Attorney  General  v.  Kwok-a-Sing,  L.  I!  5  1".  C.  179  ;  Rex  v.  Daw- 
son, 13  H..w.  St.  Tr.  4.01.  See  also  United  States  v.  Tully,  l  Gall.  C. 
147;  United  States  v.  Jones,  3  Wash.  C.  Cl  209;  I  nited  States 
v.  Gibert,  2  Sumner  C.  Ct.  19;  United  States  v.  Pirates,  5  Wheat. 
(V.*.)  1S4;  The  Antelope,   10  Wheat.   (U.S.)  66 

-  United  States  v.  Palmer,  3  Wheal    (U   S.J  610 

s  United  States  v.  Brig  Malek  Adhel.  2  How.  (U.  S.)  210.  On  the 
question  of  jurisdiction  of  a  crime  committed  on  board  a  foreign  ees- 
Bel,  Bee  the  very  learned  and  elaborate  case  of  Com.  v.  Macloon,  101 
Mass.  l. 

*  For  the  statutory  law  npon  this  Bubject  Bee  l'.  s.  Revised  Stat- 
utes, § 

5  The  Marianna  Flora,  ll  Wheat.  (U  S.)  1. 

6  United  -    I  Klintock,  S  Wheat.  (U.  S.)  144. 


BARRATRY.  321 

for  some  unlawful  purpose,  in  violation  of  their  duty 
to  the  owners  of  the  vessel. 

Thus,  stealing  from  the  cargo,1  wilful  deviation  in 
fraud  of  the  owner,2  or  delay  for  private  gain,3  or  for 
any  unlawful  purpose,4  have  severally  been  held  to 
constitute  barratry.  So  has  the  unlawful  resistance 
to  the  search  of  a  belligerent.5  And  negligence  may 
be  so  gross  as  to  amount  to  fraud,  just  as  at  common 
law  it  may  be  so  gross  as  to  amount  to  criminality." 
It  is  not  necessary  that  there  should  be  fraud,  in  the 
sense  of  an  intention  on  the  part  of  the  accused  to 
promote  his  own  benefit  at  the  expense  of  the  own- 
ers, but  any  wilful  act  of  known  illegality,  every 
gross  malversation  or  criminal  negligence  in  the  dis- 
charge of  duty,  whereby  the  owner  of  the  vessel  is 
damnified,  comes  within  the  legal  definition  of  bar- 
ratry.7 But  the  negligence  must  be  so  gross  as  to 
be  evidence  of  a  fraudulent  intent.8 

1  Stone  v.  National  Ins.  Co.,  19  Pick.  (Mass.)  34. 

2  Vallejo  v.  Wheeler,  Cowp.  143. 
a  Ross  v.  Hunter,  4  T.  R.  33. 

4  Roscow  t'.  Corson,  8  Taunt.  684. 

5  Brown  v.  Union  Ins.  Co.,  5  Day  (Conn.)  1. 

6  Patapsco  Ins.  Co.  v.  Coulter,  3  Pet.  (U.  S.)  222. 

i  Lawton  v.  Sun  Mut.  Ins.  Co.,  2  Cush.  (Mass.)  500. 

8  Fayerweather  v.  Phenix  Ins.  Co.,  54  N.  Y.  Super.  Ct.  545. 


■2\ 


INDEX. 


[THE  REFERENCES   ARE  TO  THE  SECTIONS.] 


Abduction  by  the  common  law,  what,  198. 

distinguished  from  kidnapping,  198. 
now  mostly  a  statutory  offence,  198. 
"  for  purpose  of  prostitution,"  what,  198. 
forcible,  may  be  by  fraud  or  threats,  198. 
distinguished  from  seduction,  197. 
mistake  as  to  age  no  defence  to,  56. 
Abortion  not  an  offence  at  common  law,  200. 
consent  of  woman  no  excuse,  200. 
both  parties  to,  guilty,  200. 
attempt  to  commit,  indictable,  200. 
Accessory,  who  is,  69-75. 

none  in  manslaughter  or  treason,  69,  72. 
Accident,  how  far  a  defence,  28,  29,  238. 
Accomplice,  evidence  of,  130. 
who  is,  76,  203. 
who  is  not,  76,  200. 
Accusation  of  crime,  how  made,  90. 
Acquiescence  for  detection,  effect  of,  22. 
Act  must  co-exist  with  intent,  5. 
effect  of  failure  of,  20. 
criminal,  what  is,  12. 
Adultery  defined,  195. 

no  offence  at  common  law,  195. 
not  everywhere  a  crime,  69. 
original  idea  of,  195. 
"  open  and  notorious,"  what,  195. 
"living  in,"  what,  195. 


324  INDEX. 

Affirmation  defined,  147. 
Affray  defined,  1G4. 

two  persons  requisite  in  an,  164. 
Agent  in  embezzlement,  who  is,  3uo,  301. 
Aiding  and  abetting,  one  guilty  of,  is  principal   69. 
Allegations  in  indictment,  what  are  necessary,  'J8. 
Allegiance  to  government,  who  owe,  137. 
Amendment  of  indictment,  how  made,  91. 
Animals,  cruelty  to,  when  criminal,  15. 
Apostasy,  not  an  offence  in  this  country,  193. 
Arraignment,  92. 
Arrest,  how  made,  87. 

without  warrant,  88. 
whun  legal  and  when  not,  161,  239. 
unlawful,  as  provocation,  229. 
resistance  to,  as  affecting  degree  of  homicide, 
Arson  defined,  250. 

"  dwelling-house,"  meaning  of,  in,  250. 
ownership  in,  what,  250. 
occupation  in,  what,  253. 
motive  and  intent  in,  254. 
"  burning"  defined,  255. 
Assault  defined,  205. 

force  in,  must  be  unlawful,  207. 
fraud  vitiates  consent  in,  209. 
consent  to,  how  far  an  excuse,  208,  209. 
consent  to,  distinguished  from  submission,  209. 
degree  of  force  accessary,  210. 
application  of  force,  mode  of,  in,  210,  211. 
imprisonment  not  necessarily  an,  211. 
fear  supposes  force  in,  212. 
threat  of  personal  injury  in,  212. 
threat,  hut  no  intent  to  injure  in,  213. 
self-defence  against,  how  far  permissible,  03,  214. 
in  defence  of  property,  when,  66,  67,  215. 
accidental,  216. 
Assembly,  unlawful,  what,  165. 
Attempt,  criminal,  defined,  18,  183-185. 
offer  to  bribe,  an,  l  to,  is:». 
offer  to  accept  a  bribe,  an,  140,  185. 
distinguished  from  preparation,  183. 
impossible  of  success,  184. 


INDEX.  325 

Attorney,  duty  of  prosecuting,  before  grand  jury,  91. 
Authorization  of  act  by  goverumeut,  how  far  valid,  60. 
Autrefois  convict  and  acquit,  plea  of,  117  ff. 

Bail,  59. 

Barratry  (as  a  common-law  offence)  defined,  143. 
is  a  habit,  143. 

by  whom  it  may  be  committed,  143. 

common  law  of,  not  generally  adopted  iu  this  country,  145. 
Harratry  (as  a  maritime  offence)  defined,  339. 

fraud,  what  amounts  to,  in,  339. 
Battery  defined,  205,  206. 
Benefit  of  clergy,  what,  95. 
Bestiality  defined,  203. 
Bigamy  defined,  196. 

gist  of  the  offence,  196. 
effect  of  divorce  in,  196. 
may  be  unintentional,  57,  196. 
Bill  becomes  indictment,  when,  91. 
Blasphemy  defined,  194. 

criminal  at  common  law,  15. 
instances  illustrative,  194. 
a  form  of  nuisance,  181. 
Brawler,  common,  181. 
Bribery  at  common  law  is  criminal,  13. 
defined, 140. 

an  offer  to  bribe,  or  accept  a  bribe,  an  attempt,  140,  185. 
modern  tendency  to  extend  the  scope  of,  illustrations,  140. 
payment  of  expenses,  how  far,  140. 
Buggery  defined,  203. 

not  an  offence  in  some  States,  203. 
not  regarded  as  criminal  by  some  Christian  nations,  203. 
penetration  only  necessary  to,  203. 
must  be  per  anum,  203. 
Burden  of  proof  in  criminal  cases,  124. 
Burglary  defined,  256. 

breaking,  actual,  in,  257. 

breaking,  constructive,  in,  258. 

breaking  out,  262. 

entry  in,  what,  263. 

time,  effect  of,  in,  266. 

effect  on,  of  admission  bv  servant,  22. 


326  INDEX. 

"  Burning"  defined,  255. 
By-laws  require  intent  when,  55. 

Carelessness,  criminal.  2.32,  233. 
••  Cast ].%"  defence  of,  G7,  249  ff. 
Challenge  to  fight  a  duel,  indictable,  185. 

inviting  a,  indictable,  185. 
Champerty  defined,  143. 

modern   tendency  to  restrict   the   common  law  definition 
of,  145. 
"Character  unchaste,"  and  "good  repute  for  chastity,"  distinguished, 
197,  198. 
evidence  of,  129. 
Cheating  defined,  318. 

mere  lying  insufficient  in,  318. 
must  be  tokeu  or  device,  319. 
swindling,  form  of,  320. 
Christianity  part  of  the  common  law,  2,  194. 

crimes  against,  192  ff. 
Choses  in  action,  larceny  of,  272. 
Clergy,  benefit  of,  what,  95. 
Clerk,  in  embezzlement,  who  is,  300. 
Coercion  excuses  crime,  when,  37,  68,  69. 
Cohabitation,  lascivious,  what,  15,  201. 
Commitment,  89. 
Common  scolds,  181. 
Complaint,  what  is,  90. 

evidence  of  fresh,  131. 
Conditional  pardon,  97. 
Condonation,  effect  of,  20. 
Confession,  when  admissible  in  evidence,  128. 

what  is,  128. 
Conflagration,  destruction  of  property  to  stay,  61. 
Consent  prevents  act  from  Icing  crime  when,  23. 
when  invalid.  23,  208. 
whether  necessary,  in  seduction,  197. 
obtained  by  fraud  or  fear  nugatory.  209. 
and  submission  distinguished,  209,  244. 
in  abortion  no  excuse,  200. 
in  In;  cuse,  203, 

in  burglary  no  excuse,  259. 
Conspiracy  denned,  186. 


INDEX.  327 

Conspiracy  an  attempt,  186. 

what  amounts  to,  187. 
agreement  the  gist  of  the  offence,  188. 
if  felony  be  committed,  what,  188. 
all  participators  in,  equally  guilty,  190. 
effect  of  local  laws  in,  191. 
Construction  of  criminal  and  penal  law,  strict,  125. 
Constructive  intent,  28,  34. 

Contempt  of  court  punishable  by  indictment,  and  summarily  by  the 
court,  154. 
what  acts  constitute,  155. 
proceedings  upon,  158. 
Continuing  crime,  jurisdiction  of,  80. 
Contracts,  allegation  of,  in  indictment,  108. 
Contributory  negligence,  effect  of,  24. 
Conviction  of  lesser  offence,  93. 
Corporations,  indictable,  when,  38. 
Corpse,  casting  in  river,  criminal,  15. 
Corpus  delicti,  necessity  of  proof  of,  126,  128. 
Corruption  in  public  office  criminal,  13. 

of  morals,  act  tending  to,  criminal,  15. 
Counterfeiting  defined,  336. 

and  forgery  distinguished,  336. 
how  punishable,  336. 
Counts  of  indictment,  joinder  of,  98,  111-113. 
Court  is  custos  morum  populi,  15. 
Crime  defined,  1. 

by  whom,  defined,  2. 
how  prosecuted  and  punished,  3. 
difference  between  wrong  and,  6. 
what  acts  amount  to,  12. 

none  at  common  law,  under  United  States  government,  4. 
elements  of,  5,  99. 

what  not  indictable  or  punishable,  8. 
moral  obliquity  not  essential  to  constitute,  7. 
in  one  jurisdiction  not  necessarily  crime  in  another,  7. 
jurisdiction  of  continuing,  80. 
ignorance  of  fact,  when  no  excuse  for,  51,  53. 
when   under  indictment  for,   conviction   may  he   had  of  an- 
other, 112. 
when  several  commit,  all  principals,  69. 
against  two  sovereignties,  83,  119. 


328  INDIA 

Crimes,  classification  of,  9. 

Criminal,  who  may  become  a,  35. 

Criminal  capacity .  35-49. 

Criminal  case,  test  of,  124. 

Criminal  intent,  when  not  necessary  to  constitute  crime,  53. 

Criminal  law  construed  strictly  in  favor  of  accused,  12;>. 

Criminal  uegligence,  what  is,  31. 

Criminal  responsibility  when  it  attaches,  35-49 

Criminality,  test  of,  6. 

Criminals,  classification,  69-76. 

Cruelty  to  animals,  when  criminal,  15. 

Culpable  negligence,  what  is,  31. 

Cumulative  sentence,  115. 

Cursiug,  habitual,  181. 

Curtilage,  meaning  of,  251. 

Custody  and  possession  distinguished,  299. 

taking  of,  not  larceny,  279. 
Custos  morum  populi,  court  is,  15. 

Decency,  offences  against,  15,  192  ff. 
Declarations,  dying,  132. 
Deeds,  larceny  of,  273. 

Defence  of  person  or  property,  when  justifiable,  63. 
of  one's  self,  64,  68. 
of  another,  05. 
of  property,  66,  67. 
Defendant,  testimony  of,  127. 
Defendants,  joinder  of,  1 16. 

Delirium  tremens,  its  effect  on  criminal  responsibility,  48. 
Description  in  indictment,  what  sufficient,  106. 
Detainer,  forcible,  what,  168. 
Detection,  effect  of  acquiescence  for,  22. 
Device  in  cheating,  what,  319. 

Disease,  intentional  communication  of,  criminal,  16. 
Documents,  larceny  of,  272. 

Doubt,  reasonable,  when  prisoner  to  have  benefit  of,  47,  124,  125. 
1  hrunkard,  common,  isl . 
Drunkenness  in  general  no  excuse  for  crime,  46. 

how  malice  and  intent  affected  by,  17-49. 
involuntary,  releases  from  responsibility,  49. 
when  criminal.  15. 
Duplicity  of  indictment,  111. 


INDEX.  329 

Duty,  public,  what  is,  30. 

"  Dwelling-house,"  iu  arson,  meaning  of,  251-253. 

"  malicious  burning  "  of,  252. 

meaning  of,  iu  burglary,  260,  261. 

defence  of,  67,  249  ff. 
Dying  declarations,  evidence  of,  132. 

Eavesdropping  a  form  of  nuisance,  171,  181. 
Economy,  public,  offences  against,  163  ff. 
Election,  fraudulent  voting  at,  13. 
Embezzlement  not  an  offence  at   common  law,  298. 
formerly  only  a  breach  of  trust,  7. 
distinguished  from  larceny,  how,  298,  299. 
breach  of  trust,  298,  302. 
made  criminal  by  statute,  17. 
of  public  moneys,  13. 

clerk,  servant,  agent,  officer,  meaning  of,  in,  300. 
employment,  what,  in,  302. 
what  may  be  embezzled,  303. 
intent  to  defraud  essential,  304. 
Embracery  defined,  146. 
Enforcement  of  law,  act  done  by  way  of,  59. 
Engrossing,  forestalling,  and  regrating,  what,  177. 
Entry,  forcible,  what,  168. 
Escape  defined,  161. 
Evidence  in  criminal  cases,  124  ff 
burden  of  proof,  124. 
of  corpus  delicti,  126,  128. 
of  defendant,  127. 
of  accomplice,  130. 
confession  of  defendant  as,  128. 
of  character,  129. 
of  fresh  complaint,  131. 
of  dying  declarations,  132. 
of  receiving  stolen  goods,  328. 
in  perjury,  152. 
in  treason,  139. 

of  insanity,  burden  of  proof,  45,  124. 
of  an  accomplice,  130. 
Ex  post  facto  law,  what,  3. 
Execution  of  law,  act  done  in,  59. 
Exhibition,  maintaining  indecent,  criminal,  15. 


330  INDEX. 

Explosive  substances,  keeping  in  town,  criminal,  14-. 
Extortion  defined,  141. 

musl  be  intentional,  141. 
Extradition,  84-86. 

Fact,  ignorance  of.     See  Ignorance. 
Failure  of  criminal  act,  effect  of,  20. 
False  imprisonment,  what,  240. 
Fal.se  pretences,  what,  .'in.'). 

made  criminal  by  statute,  17. 
cheating  by  words  or  acts,  305. 
essential  elements  of,  .305. 
opinions,  how  far  included  in,  306. 
what  may  lie  subject  matters  of,  307. 
intent  to  defraud  necessary,  310. 
and  actual  fraud,  311. 

must  be  made  before  obtaining  goods,  306,  311. 
where  both  parties  cheat,  how,  2."),  312. 
no  deceit,  no  cheating,  313. 
imprudence  in  cheated  party  immaterial.  313. 
whether,  must  be  sole  means  of  deceiving,  314. 
property  subject  matter  of,  316. 
and  larceny  distinguished,  317. 
Fear,  when  it  amounts  to  lone,  198,  199,  209,  212,  213,  240,  243,  247. 

putting  in,  what,  247 
Felonies,  joinder  of,  in  indictment,  114. 
Felony,  what,  10. 

right  and  duty  to  prevent,  59,  239. 
"  Fighting,"  meaning  of,  164. 

and  self-defence  distinguished,  164. 
Force,  when  lawful,  208. 

when  fraud  or  fear  supplies  the   place   of,  198,  199,  209-213, 

240,  243,  247,  248,  277. 
when  not,  197. 
and  violence  in  rape,  243. 
Forcible  entry  and  detainer  defined,  167. 

criminal  at  common  law,  17. 
degree  of  force  in,  168. 
what  may  he  entered  or  detained,  169. 
Forcible  trespass,  to  personal  property,  170. 
Forestalling,  \\  hat,  1 77. 
Forgery  dclineil, 


INDEX.  331 

Forgery  must  be  of  a  material  matter,  330. 
may  be  of  fictitious  name,  331. 

alterations  by  addition  or  erasure  construed,  331,  332. 
signing  one's  own  name  may  be,  331. 
must  be  intent  to  defraud,  335. 
lack  of  similitude  in,  immaterial,  335. 
Forgiveness  by  injured  party,  effect  of,  21. 
Former  acquittal  and  conviction,  plea  of,  117  ff. 
Fornication  defined,  202. 

offence  of  ecclesiastical  origin,  202. 

pure  and  simple,  not  an  offence  at  common  law  in  this 
country,  202. 
Fraud,  when  it  is  equivalent  to  force,  198,  199,  208,  209,  240,  277. 
when  not,  2-13. 

when  it  excuses  crime,  37,  49,  69. 
what  amounts  to,  in  barratry,  339. 
Fresh  complaint,  131. 
Fugitives  from  justice,  surrender  of,  84-86. 

Game,  injury  in  course  of,  23,  238. 
Goods,  personal,  subjects  of  larceny,  271,  275. 
Government,  offences  against,  13,  133  ff. 
Grand  jury,  how  constituted,  91. 

Health,  public,  offences  against,  14,  163  ff. 
High  seas,  jurisdiction  over,  78. 

within  three-mile  limit,  77. 
Homicide,  evidence  of  dying  declarations  in,  132. 

defined,  218. 

may  be  lawful,  when,  218. 

justifiable  and  excusable,  when,  218. 

suicide,  form  of,  219 

must  be  of  human  being,  born  and  alive,  219. 

death  must  be  within  a  year  and  a  day,  219. 

murder,  highest  degree  of,  220. 

malice  in,  express  and  implied,  221. 

malice  aforethought  and  presumptive,  222-224. 

manslaughter,  degree  of,  226. 

accidental,  237. 

in  prevention  of  felony,  239 
See  Murder  and  Manslaughter. 
House,  every  man's,  his  castle,  meaning  of,  67,  215. 


332  INDEX. 

Husband,  accessory  to  wife,  and  wife  to  husband,  when,  74. 
coercion  of  wife  by,  37. 

Idem  sonans,  103,  107. 

Identical  offences,  what  are,  120. 

Idiots  irresponsible  for  acts,  when,  39,  40. 

Ignorance  of  fact,  when  no  excuse  for  crime,  50-57. 

of  law  no  excuse  for  crime,  51-57. 
Immoral  act,  one  engaging  in,  takes  risk  of  criminality,  56. 
Immorality,  when  criminal,  15,  181. 
Imprisonment,  what,  102. 
false,  240. 
Imputed  malice,  223. 
Indecency,  when  criminal,  15. 
Indecent  exhibition,  criminal,  15. 
Indictment,  what  is,  90. 

how  bill  becomes,  91. 

arraignment  on,  92. 

quashing,  94. 

amendment  of,  91. 

form  of,  98. 

requisites  of,  98. 

particularity,  100. 

surplusage,  101. 

variance,  101,  103,  107. 

laying  jurisdiction,  102. 

names  in,  103. 

time,  104. 

place,  105. 

description  in,  106. 

allegation  of  words  in,  107. 

allegation  of  contract  or  writing  in,  108. 

upon  statute,  109. 

statutory  form  of,  whether  constitutional,  1 1  o. 

joinder  of  counts  in,  98,  111-113. 
of  offences  in,  114. 
of  defendants  in,  1 16. 

conviction  of  lesser  offence  than  charged  by.  112. 

cumulative  sentence  on.  115. 

duplicity  in,  111. 
Individual  not  always  protected  by  public,  17. 
Individuals,  offences  against,  16. 


ixdex.  333 

Infants,  when  criminal  and  when  not,  36. 
Infection  of  drinking  water  criminal,  16. 
Information,  what  is,  90. 
Insane  person  cannot  be  tried  or  punished,  44. 
Insanity  defined,  39-43. 
test  of,  40. 
emotional,  what,  42. 
moral,  43. 

prevents  trial  and  punishment,  44. 
proof  of,  45. 
Instruments  in  writing,  larceny  of,  272. 
Intent,  criminal,  how  far  necessary  to  constitute  crime,  53. 
distinguished  from  malice,  26. 
distinguished  from  attempt,  183. 
presumed  from  unlawfulness  of  act,  when,  27. 
when  it  must  be  proved,  27,  32,  200. 
how  affected  by  drunkenness,  47,  267. 
to  defraud,  170,  334. 
and  act  must  co-exist,  5. 
constructive,  28. 
specific,  32,  34. 

in  statutory  crimes,  when  necessary,  53-57. 
International  law,  offence  against,  338. 

part  of  the  common  law,  2. 
Interpretation,  rules  of,  125. 
Intoxication.     See  Drunkenness. 
Invasion,  entry  on  land  to  repel,  61. 
Irresistible  impulse,  41. 

Jeopardy,  no  one  to  be  put  twice  in,  meaning  and  scope  of  rule, 

117-122. 
Joinder  of  counts  in  indictment,  111-115. 

of  defendants,  116. 
"  Judicial  proceeding,"  what,  149. 

Jurisdiction,  criminal,  its  extent  and  limitations,  70,  77,  78,  79,  80,  82, 
296,  328. 
none  by  consent  of  parties,  77. 
of  a  county,  what  included  in,  77. 
how  laid  in  indictment,  102. 
Jury,  grand,  91. 

libels  against,  157. 
Justification,  matters  of,  58. 


334  INDEX. 

Kidnapping  of  defendant  in  foreign  country  no  defence,  85. 

and  abduction  distinguished,  198. 

defined,  199. 
Knowledge  of  the  law,  when  presumed,  51. 
when  not,  52. 

carnal,  what,  242. 

Larceny  distinguished  from  embezzlement,  284,  299. 
false  pretences,  278,  317. 

defined,  270. 

petit  and  grand,  270. 

simple,  compound,  and  aggravated,  270,  293. 

taking  ami  carrying  away  in,  277. 

taking,  degree  of  force  necessary  in,  277. 

taking  by  finding  in,  280. 

taking  of  property  left  by  mistake,  281. 

taking  of  property  given  by  mistake,  282. 

taking  by  servant  or  bailee,  283,  284. 

temporary  delivery  upon  condition  in,  285. 

taking  by  owner  in,  286. 

taking,  what  is  felonious,  288,  289. 

and  malicious  mischief  distinguished,  291. 

taking  lucrl  causa,  use  under  claim  of  right,  288-291. 

concealment  as  evidence  of  intent  in,  290. 

what  may  be  subject  matter  of,  271-275. 

wild  animals  domesticated,  274. 

value  of  property  as  an  clement  in,  276. 

ownership  in,  292. 

from  person,  from  a  vessel,  293. 

from  a  building,  293-295. 

place  and  jurisdiction  of,  80,  296,  328. 

different  simultaneous  taking,  297. 

trespass  as  an  element  of,  278. 

to  preserve  life,  68. 
Lasciviousness,  what,  201. 

behavior  and  carriage,  what,  201. 
cohabitation,  what,  201. 
Law,  ex  post  facto,  what,  3. 

penal  and  criminal,  strictly  construed,  125. 
ignorance  of,  51,  52. 
Lesser  offence,  conviction  of,  93,  112,  121. 
Libel  deliued,  172. 


index.  335 

Libel,  malice  in,  173. 

publication  of,  what,  174. 

privileged  communication  in,  175, 
Lunatics  irresponsible,  when,  39,  40. 

Maintenance  defined,  143. 

"  officious  intermeddling,"  what,  144,  145. 
-See  Barratry. 
Mala  prohibita  and  mala  in  se  distinguished,  53. 
Malice  defined,  33,  173,  221-224,  254,  322. 
is  a  form  of  specific  intent,  32 
how  affected  by  intoxication,  47. 

aforethought,  express,  implied,  imputed,  presumptive,  221-224. 
express,  inferred  from  circumstances,  323. 
Malicious  mischief  distinguished  from  larceny,  291. 
defined,  321. 
malice  in,  322. 
Malpractice,  effect  of,  on  criminality,  24. 
Manslaughter  defined,  226. 

voluntary  and  involuntary,  226. 
mitigating  circumstances  in,  227. 
provocation  in,  228,  229. 

death  in,  must  be  direct  result  of  unlawful  act,  230. 
unlawfulness  in,  231. 
negligeuce  and  carelessness  in,  232,  233. 
self-defence,  how  far  an  excuse,  234. 
Married  woman,  when  excused  for  crime,  37,  125. 
Maritime  crimes,  337  ff. 
Master,  right  of,  to  correct,  62. 
Mayhem  at  common  law  defined,  217. 

now  generally  defined  by  statutes,  217. 
generally  a  misdemeanor,  217. 
Meeting,  town,  disturbance  of,  13. 
Misdemeanor,  what,  11. 

Misdemeanors,  joinder  of,  in  indictment,  114. 
Misprision,  19. 
Mistake,  when  it  relieves  from  responsibility,  49,  57,  141. 

See  Ignorance. 
Morality,  offences  against,  15,  181,  192  ff. 
Motive  distinguished  from  intent,  26,  254 
Murder  defined,  220. 
degree  of,  225. 


336 


i.\'Di:x 


Murder,  malice  in,  221-224. 

trial  for,  alter  former  trial  for  assault,  122. 
See  Homicide. 
Mute,  standing,  92. 

Name,  allegation  of,  in  indictment,  103. 
Nations,  law  of,  part  of  the  common  law,  2. 

offences  against,  •'537  IT. 
Necessity,  whether  a  justification  for  crime,  68,  236. 
Negligence,  what  is,  29. 

of  what  duties,  30. 
what  is  culpable,  31,  232,  233. 
effect  of  contributory,  24. 
evidence  of  fraud,  when,  339. 
Nolle  prosequi,  94. 
Nolo  contendere,  plea  of,  93. 
Non-conformity  no  offence  in  this  country,  193. 
Nuisance  defined,  178. 

illustrations  of,  178-181. 
no  prescription  for  right  to  maintain,  182. 
public  benefit  no  excuse,  182. 
no  act  authorized  by  law  a,  1 80. 
hindrance  to  a  public  right  a,  179. 
and  interference  with  enjoyment  of  a,  179 
an  established  lawful  business  may  become  a,  182. 
time  and  place  sometimes  decisive  of,  180. 
justified  by  public  policy  when,  61. 
Nuisances,   common   scolds,   drunkards,   barrators,   profane    persons, 
keepers  of  tippling-shops  and  houses  of  ill  fame,  pro- 
moters  of    lotteries,    disseminators   of     disease   or    of 
offensive  odors,  and   persons   otherwise   annoying   ttie 
public,  indictable  as,  14,  181. 

Oath  defined,  147. 

form  of  administration  of,  not  essential,  147. 
to  be  valid,  must  be  required  by  law,  148. 

must  be  wilful  and  false,  150. 

must  be  on  a  material  point,  150,  151. 
whether  materiality  of,  a  question  of  law  or  fact,  151. 
whether  voluntary  or  compulsory,  immaterial,  when,  150. 
according  to  knowledge  and  belief,  may  be  perjury,  150. 
so  if  no  knowledge  or  belief,  150. 


index.  337 

Oaths  of  officer  not  within  the  law  against  perjury,  150. 
Obscene  words,  whether  necessary  to  state,  in  indictment,  107. 
Obscenity,  when  criminal,  15. 

publication  of,  when  justifiable,  61. 
Occupation  of  dwelling-house,  what,  253,  264. 
Offences,  joinder  of,  in  indictment,  114. 
Office,  corruption  in  public,  13. 
Officer,  failure  of  public,  to  discharge  duties,  13. 

who  is,  in  embezzlement,  300,  301. 
Oppression,  142. 

Outcries  in  public  street,  criminal,  14. 
Ownership  in  arson,  meaning  of,  252. 

in  burglary,  meaning  of,  265. 

in  larceny,  meaning  of,  292. 

allegation  of,  in  indictment,  106. 

Pardon,  97. 

Parent,  right  of,  to  correct  child,  62. 

Participation  of  injured  party  in  crime,  effect  of,  25. 

Particularity  of  indictment,  100. 

Penal  law  strictly  construed,  125. 

Perjury  defined,  147. 

evidence  in,  amount  required,  152. 
oath  of  office  not  within  the  law  of,  150. 
subornation  of,  defined,  13,  153. 
subornation  of,  evidence  in,  153. 
Person,  injury  to,  when  criminal,  16,  204  ff. 
Pestilence,  destruction  of  property  to  stay,  61. 
Piracy  defined,  338. 

robbery  on  board  a  vessel,  when  not,  338. 
how  triable  and  punishable,  338. 
jurisdiction  of,  78,  338. 
Place,  public,  what,  164. 

allegation  of,  in  indictment,  105. 
Plea,  form  of,  92. 

Pleading,  criminal.     See  Indictment. 
Police  regulations,  when  intent  required  in,  55. 
Polygamy.     See  Bigamy. 

Possession  and  custody  distinguished,  284,  299. 

Possession,  recent,  of  stolen  goods,  proves  larceny  rather  than  receiv- 
ing, 328. 
Premeditation  a  form  of  specific  intent,  32. 

22 


338  INDEX. 

Preparation,  intent  and  attempt  distinguished  from,  183. 

Presence  of  prisoner,  92,  93,  96. 

Presentment,  91. 

Pressure  of  circumstances,  68,  236. 

Principals  and  accessories,  who  are,  69-71. 

Prison,  what,  162. 

Prison  breach,  defined,  162. 

Prisoner  to  be  brought  before  magistrate,  89. 

presence  of,  at  trial,  92,  93,  90. 
Privileged  communications,  what,  175. 
Process,  contempt  of,  156. 
Profanity,  form  of  nuisance,  181. 
Proof,  burden  of,  in  criminal  cases.  124. 
Property,  how  far  it  may  be  defended  by  force,  66,  215,  234. 

offences  against,  17,  269  ff. 
"  Prostitution " and  "  illicit  intercourse"  distinguished,  198. 
Public  economy,  offences  against,  163  ff. 
Public  lands,  destruction  of  trees  on,  13. 
Public  office,  corruption  in,  13. 

Failure  to  discharge  duties  of,  13. 
Public  place,  what,  164. 
Public  policy,  when  excuse  for  crime,  61,  68. 
Publication  of  libel,  what,  174. 
"  Puffing,"  whether  false  pretences,  308. 
Punishment  twice  for  same  offence,  when,  83,  119. 

Quashing  indictment,  94. 

Railers,  common,  181. 
Rape  defined,  241. 

carnal  knowledge  in,  what,  242. 
force  and  violence  in,  243. 
infant,  male  incapable,  when,  36. 
evidence  of  fresh  complaint  in,  131. 
Real  property,  injury  to,  not  criminal.  17. 
Receiving  stolen  goods,  substantive  offence,  324. 
what  constitutes,  324,  325. 
jurisdiction  in  cases  of,  328. 
Regrating,  what,  177. 
Religion,  motives  of,  no  cxeuse  for  crime,  26. 

offences  against,  15,  192  ff. 
Rent  defined,  165. 


INDEX.  339 

■Repeal  of  statute  pending  trial,  effect  of,  3. 

Reprieve,  97. 

Restitution,  effect  of,  21. 

Retreat,  necessity  of,  before  killing,  when,  64,  214,  215,  234. 

Riot  defined,  165,  239. 

violence  necessary  to  constitute,  166. 
disturbance  of  public  peace  gist  of  offence,  166. 
Robbery  defined,  245. 

force  and  violence  necessary  in,  246. 

putting  in  fear  in,  what,  247. 

taking  of  property  in,  what,  248. 

on  board  a  vessel  not  piracy,  when,  338. 

Safety  of  individual,  injury  to,  criminal,  16. 
Scholar  may  be  punished,  62. 
Scolds,  common,  181. 
Second  offence,  form  of  charging,  99. 
Security,  offences  against  public,  14,  163  ff. 
Seduction,  whether  indictable  at  common  law,  197. 
what  constitutes,  197. 
and  abduction  distinguished,  197. 
and  prostitution  distinguished,  198. 
Self-defence,  its  limitations,  63,  64,  68,  214,  232,  234-236. 
Sentence,  96. 

cumulative,  115. 

after  plea  and  demurrer,  when,  123. 
Servant,  admission  of  burglar  by,  22. 

in  embezzlement,  who  is,  300. 
Shipwreck,  rights  of  survivors  of,  to  save  themselves,  68,  236. 
Shooting  so  as  to  cause  fright,  when  indictable,  16. 
Slander,  when  indictable,  176. 
Sodomy  defined,  203. 

how  punishable  at  common  law,  203. 
Solicitation,  an  attempt,  when,  19,  184. 
Specific  intent,  32,  34. 
Sport,  injury  in  course  of,  23,  238. 
Statute  relating  to  crime,  3. 

to  be  interpreted  in  light  of  common  law,  3. 

repeal  of  pending  trial,  effect  of,  3. 

expiration  of,  3. 

most  minor  offences  defined  by,  12. 

how  far  jurisdiction  may  be  conferred  by,  81. 


340  INDEX. 

Statute,  indictment  upon,  109. 

Statutory  crime,  whether  intent  an  element  in,  5.3-57. 

form  of  indictment,  whether  constitutional,  110. 
Submission  distinguished  from  consent,  209. 
Subornation  of  perjury,  13,  153. 
Suicide,  criminal,  L85. 

attempt  at.  punishable,  185. 
Surplusage  in  indictment,  101. 
Swearing,  when  criminal,  15. 

habitual,  a  nuisance,  181. 
Swindling,  what,  .'320. 

Tabula  in  naufragio,  C8. 
Taking,  temporary,  not  larceny,  289. 
Testimony  of  defendant,  127. 
of  accomplice,  130. 
Then  and  there,  in  indictment,  105. 
Time,  allegation  of,  in  indictment,  104. 
Token,  cheating  by,  what,  319. 
Tranquillity,  offences  against  public,  14,  163  ff. 
Treason  at  common  law,  what,  134. 

high  anil  ]>elit,  134. 

defined,  135. 

levy  of  war  in,  13G. 

insurrection  against  private  person  not,  136. 

misprision  of,  138. 

evidence  in,  139. 
Trespass  <>n  real  estate,  not  criminal,  17. 

forcible,  what.  170. 
Trial,  criminal,  how  conducted,  93. 
by  jury,  after  demurrer,  170. 
Trick,  larceny  by,  278. 
Trust,  breach  of,  not  criminal,  17. 

United  States  courts,  jurisdiction  of,  82. 
Unlawful  assembly  defined,  165. 

Variance  in  indictment.  101,  103,  107. 
Venue  in  indictment,  how  laid,  102. 
Verdict,  93, 

Vessel  at  sea,  part  of  the  jurisdiction  of  the  sovereignty  under  whose 
flag  she  sails,  78. 


INDEX.  3*1 


Violence  to  person,  criminal,  16,  204  ff. 
Voluntary  confession,  what  is,  128. 
Voting,  fraudulent,  13. 

War,  levy  of,  what,  136. 

Warrant  to  be  shown  on  demand,  87. 

arrest  without,  88. 
Water,  infection  of  drinking,  criminal,  16. 
Weapon,  openly  carrying  dangerous,  criminal,  14. 
"  Wilfully,"  meaning  of,  322. 
Will,  against,  meaning  of,  244,  247. 
Witness,  defendant  may  be,  127. 
Witnesses,  in  perjury,  152. 
in  treason,  139. 
Words,  how  alleged  in  indictment,  107. 
Worship,  disturbing  public,  criminal,  15. 
Writing,  allegation  of,  in  indictment,  108. 

larceny  of  instrument  in,  272. 
Wrong,  difference  between  crime  and,  6. 


THE 

STUDENTS'    SERIES 


ELEMENTARY    LAW    TREATISES 

BY    ABLE    WRITERS, 

including  the  most  important  topics  of  law. 

The  volumes  of  the  Students'  Series  are  in  use  as  Text-Books 
in  leading  Law  Schools  throughout  the  United  States. 

In  planning  this  scries  of  bur  boohs  for  students,  you  have  rendered  a  very  gi 
vice,  not  only  to  the  students  themselves,  but  also  to  the  profession.     There  has  been  no 
greater  obstacle  to  all  efforts  for  a  higher  standard  of  legal  education  than  the  lack  of 
such  books.  —  Prof.  William  G.  Hammond,  Law  Department,  Iowa  State  University. 

If  these  unpretending  volumes,  so  fall  of  instruction,  are  estimated  at  their  true 

Value,  their  sate  arid  circulation  u  ill  not  be  confined  hi  the  legal  profession  alone.—  HON. 
John  Crowell,  LL.D.,  President  of  Ohio  State  and  Union  Law  College. 

The  plan  needs  only  development  to  render  if  popular,  and  the  volumes  now  out  are 
a  worthy  execution  of  it.  '.  .  .  Either  volume  would  serve  tfu  purposes  of  a  maturi 
lawyer,  desiring  to  refresh  his  memory  of  /,'  principles  of  the  subject. — 

N.  Y.  Times. 

VOLUMES    READY. 

BIGELOW   ON   TORTS. 
BIGELOW   ON   EQUITY. 
HEARD   ON   CRIMINAL    PLEADING. 
HEARD   ON   CIVIL   PLEADING. 
COOLEY   ON   CONSTITUTIONAL    LAW. 
LANGDELL'S   SUMMARY   OF   CONTRACTS: 
CURTIS   ON   UNITED    STATES   COURTS. 
MAY   ON   CRIMINAL    LAW. 
STIMSON'S   LAW   GLOSSARY. 
ROBINSON'S   ELEMENTARY   LAW. 
EWELL'S   MEDICAL   JURISPRUDENCE. 
STEPHEN'S   DIGEST   OF   EVIDENCE. 
ROBINSON   ON   FORENSIC   ELOQUENCE. 
BIGELOW   ON    BILLS.  NOTES,  AND   CHECKS. 

IN    ACTIVE    PREPARATION. 

BRYANT   ON   CODE   PLEADING. 
ABBOTT   ON   WILLS. 

PRICE  OF  EACH  VOLUME.  —  Cloth,  $2.50  net;  Law  Sheep,  $300  net. 
Postage  10  cents  per  volume  additional 

1 


I.  BIGELOW    ON    TORTS. 

The  style  is  attractive,  the  definitions  concise  and  accurate,  and  the 
size  of  the  volume  so  moderate  as  to  be  equally  attractive  both  to  the 
practitioner  and  the  student.  From  Hon.  John  Crowell,  President  0/  Ohio 
Slate  "ml  Union  Law  College,  Cleveland, 

AN  ELEMENTARY  TREATISE  ON  THE  LAW  OF  TORTS.  —  By  Mki.- 
ville  M.  Bigelow,  Ph.D.,  author  of  "  A  Treatise  on  the  Law  of  Estoppel," 
"A  Treatise  on  the  Law  of  Fraud,"  and  Editor  of  "Leading  Cases  in  the 
Law  of  Torts,"  etc.  Fourth  edition,  revised  and  enlarged.  Cloth,  $2.50 
net ;  law  sheep,  >;i  00  »<  t. 

Among  the  best  books  for  the  use  of  students,  tins  popular  manual  de- 
servedly takes  a  high  rank.  It  is  in  use  in  law  schools  all  over  the  country: 
for  example,  in  Boston  University  ;  University  of  Michigan;  Northwestern 
University,  Chicago;  University  of  Texas:  Washington  and  Lee  University; 
also  in  Canada  at  the  Osgoode  Hall  Law  School,  Toronto;  and  a  few  years 
since  was  adopted  as  a  text-book  in  the  famous  university  of  Cambridge, 
England.  Probably  no  other  students''  book  is  so  widely  used.  The  new  fourth 
edition  embraces  many  late  cases,  and  a  new  chapter  on  Malicious  Interference 
with  Contracts.  The  whole  book  has  been  carefully  revised,  and  many 
passages  rewritten. 

It  seems  to  ine  admirably  adapted  to  the  purpose  for  which  it  is  written.  Mr.  Bigelow 
is  very  happy  iu  his  statement  of  legal  principles,  and  nowhere  so  much  so,  I  think,  as 
in  this  book.  —  Hon.  Thomas  M.  Cooley. 

I  have  looked  through  this  volume  with  particular  interest,  from  my  own  expe- 
rience in  teaching  the  same  topic;  aud  I  have  do  hesitation  in  saying  that  it  is  much 
better  fitted  for  the  student  than  any  work  on  Torts  we  have  had  before.  —  Prof.  William 
<;.  Hammond. 

Mr.  Bigelow,  iu  his  clear  and  succinct  statement  of  the  duties  of  individuals  towanT 
each  other  as  members  of  society,  has  made  a  valuable  contribution  to  your  Law  Stu. 
dents'  Series.  —  Hon.  Morrison  R.  Waiti ,  Chief  Justice  of  the  United  States. 

Its  methodical  arrangement  of  the  classes  of  Torts,  its  clear  style,  and  it-  simple  man- 
ner of  treatment,  render  it  specially  useful  to  beginners  in  the  study  of  law.  —  James  /•'. 
Black,  Central  Law  School  of  In. liana 

It  is  the  product  of  real  thought  and  diligent  labor  :  and  the  though!  and  labor  have 
been  too  skilfully  applied  not  to  result  in  a  substantial   addition   to  legal  literature. 
Boston  Daily  Advertiser. 

II.  BIG-ELOW    ON   EQUITY. 

The  arrangement  and  treatment  of  the  subject  arc  admirable.— 
From  s.i inn,  1  i>   Davis,  Professor  hmond  College,  Virginia. 

ELEMENTS    OF   EQUITY   FOR   THE   USE   OF    STUDENTS.  —  By    Mm 
villbM.  Bigelow,  Author  of  "Law  of  Estoppel,"  "Law of  Fraud,"  etc. 
12mo.    Cloth,  $2.50  net;  law  sheep,  $3.00  net. 

A  clear  and  compact  treatise,  well  fitted  to  be  a  manual  of  a  student  of  law. — 
Hon.  John  Bascom,  University  of  Wi  ■ 


I  have  examined  Bigelow  on  Kquity.  It  is  to  be  commended  for  its  clearness  and 
conciseness  of  statement.  I  regard  the  first  chapter  as  a  model.  The  doctrines  of  Tack- 
ing, Subrogation,  and  Marshalling,  found  in  Chapters  14,  19,  and  20,  are  more  easily 
comprehended  than  in  any  other  work  on  those  subjects  that  I  have  seen.  —  Hon  J,  H. 
Carpenter,  Dean  of  Law  Faculty,  University  of  Wisconsin. 

III.  HEARD    ON   CRIMINAL   PLEADING-. 

It  deserves  an  important  position  among  the  text-books  in  every 
Law  School  in  the  country.  —  From  William  C.  Robinson,  Professor  of  Crim  inal 

Laic,  etc.,  Yule  College. 

THE  PKINCIPLES   OF   CRIMINAL   PLEADING.  -By   Franklin   Fiske 
Heard.     12mo.     Cloth,  $"2.50  net;  law  sheep,  $3.00  net. 
The  style  in  which  the  author  writes  is  admirably  adapted  to  the  object  to  be  accom- 
plished, —  it  is  clear  and  precise,  and  the  whole  matter  is  kept  within  the  bounds  of  a 
manual.  —  X   )'.  Tribune. 

An  interesting  manual,  thoroughly  supported  by  legal  authorities. — Hon.  John 
Bascom,  University  of  Wisconsin. 

IV.  HEARD    ON    CIVIL    PLEADING. 

An  admirable  companion  volume  to  his  "  Principles  of  Criminal 
Pleading,"  —  full,  clear,  concise.  —  From  Lemuel  Muss,  Indiana  University, 
Bloom  ington. 

THE  PRINCIPLES  OF  PLEADING  IN  CIVIL  ACTIONS. —  By  Franklin 
Fiske  Heard,  Author  of  "  Hie  Principles  of  Criminal  Pleading.''  12mo. 
Cloth,  $2.50  net ;  law  sheep,  $3.00  net. 

He  has  taken  the  leading  and  established  rules,  and  illustrated  them  by  ample  cita- 
tions from  ancient  and  modern  learning.  Whoever  shall  make  himself  thoroughly 
acquainted  with  those  rules  as  here  laid  out  and  enforced,  cannot  fail  of  being  a  good 
pleader.  —  Boston  Courier. 

Under  whatever  system  of  statutory  procedure  a  law  student  may  design  to  practise, 
he  will  find  it  equally  necessary  to  become  familiar  with  the  principles  of  common  law 
pleading.  Mr.  Heard's  work  is  a  plain  and  clear  guide  to  these,  and  its  silence  in  regard 
to  many  of  the  formal  and  adventitious  technicalities  of  the  older  English  system  will 
commend  it  to  American  readers.  —  Hon.  Simeon  E.  Baldwin,  Law  Department  of  Yale 
College. 

V.  COOLEY    ON   CONSTITUTIONAL    LAW. 

No  Lawyer  can  afford  to  be  without  it,  and  every  voter  ought  to 
have  it.  —  From  Hon.  J.  H.  Carpenter,  Dean  of  La%o  Faculty,  University  of 
Wisconsin. 

THE  GENERAL  PRINCIPLES  OF  CONSTITUTIONAL  LAW  IN  THE 
UNITED  STATES  OF  AMERICA.  —  By  Thomas  M.  Cooley,  Author 
of  "  A  Treatise  on  Constitutional  Limitations."     Second  edition,  by  Alexis 

C.   Angell,    of   the   Detroit   Bar.       12mo.      Cloth,   $2.50   net;    law   sheep, 

$3.00  net. 


The   new  edition  contains  large  additions.     In  it-   preparation,  the  editor, 

while  aiming  to  keep  the  1 k  a  manual,  and  not  to  malic  ii  a  digest,  has  treated 

briefly  all  important  points  covered  by  the  cases  decided  up  to  a  verj 
date.     He  made  sue!  iu  the  text  and  notes  as  had  been  required  by 

the  many  important  decisions  upon  constitutional  law  rendered  in  the  last  ten 
years. 

A  masterly  exposition  of  the  Federal  Constitution  as  actually  interpreted  by  the 
(•(•arts.  .  .  .  This  book,  of  moderate  dimensions,  should  be  placed  in  everj  student's 
hands.  -  Hon.  I'.  Bliss,  Dean  oj  Law  Department,  State  University  of  Missouri. 

It  is  worthy  of  the  reputation  of  the  distinguished  author.     It  i-  the  best  I k  on  the 

subject  to  lie  placed  in  the  h.ui  i<  nf  a  student,  and  is  a  convenient  t •• .. ,u  of  referem  e  for 
any  one.  —  Prof.  Manning  /■'.  Force,  /./..!>.,  Cincinnati  Law  School. 

it  ought  unquestionably  to  be  made  the  basis  of  a  course  of  instruction  in  all  our 

higher  schools  ami  colleges.  —  lltm.  John  F.  Dillon,  Professor  of  Columb 
New  York. 

Ii  i-  :i  work  nf  great  value,  not  ouly  for  students  in  institutions  of  learning,  but  as 
well  for  the  lawyer,  to  whom  it  supplies  at  once  a  Treatise  and  a  Digest  of  Constitutional 
Law.  —  Henry  Hitchcock,  Dean  of  tht  St    Lorn    Law  School. 

Clearly  and  compactly  written,  and  the  general  arrangement  well  adapted  for  students' 
use.  —  Hon.  Simeon  /■.'.  Baldwi  lege. 

I  have  examined  it  with  great  care,  comparing  it  closely  with  the  old  edition,  and 
testing  it  in  various  points.     \     a   re  il  gives  me  pleasure  to  state  that  we  shall  use 

the  book  both  in  the  courses  in  constitutional  history  and  law  in  the  collegiate  depart- 
ment, and  in  one  of  the  classes  in  the  law  school.  The  work  of  the  editor  ol  the  I  i  ••• 
edition,  Mr.    Angell,    has   been   done  with   the  exa  nd   care  which   an   intimate 

acquaintance  with  him,  as  a  classmate  at  the  fjniversity  of  Michigan,  led  me  to  expect  in 
whatever  he  undertook.  Judge  Cooley  is  fortunate  in  having  so  excellent  an  editor  for 
the  revision.      I  George  IP.  Knight,  Pro)  national  and 

tutional  Law,  01       S  sily. 

four  name  alone  as  it-  author  is  a  sufficient  guarantee  of  its  high  character  and  gen- 
eral usefulness,  not  onlj  for  the  use  of  the  student-  of  law  schools  and  other  institutions 
of  learning,  for  which  it  was  originally  prepared,  but  also  for  members  of  the  bar.     The 
i  90  concisely  and  clearly  a  real  benefit  for  read] 

reference.     The  editioi  all  the  late  cases  cited  and  referred  to; 

and  Mr.    \  ,.  very  careful    and    successful    in   making   the   I 

from  the  flrsl   edition,  and  adding  additional  notes.      Hon.    Albert  II.   h 
Justice  of  (h(   s  Kansas,  to  Judg<  ( 

VI.      LANG-DELL'S      SUMMARY      OF      CON- 
TRACTS. 

No  man  competent  to  judge  can  read  ;«  page  of  it  without  at  once 
recognizing  the  hand  <>i  ;i  great  master.  Ever]  line  i--  compact  <>f 
Ingenious  and  original  thought.        I  I        R 

A  SUMMARY  OF  THE  LAW  OF  CONTRACTS.  —  My  C.  C.  I.an.  mm 
Dane  Professor  of  Law  in  Harvard  University.  Second  edition.  l2mo. 
Cloth  law  sheep,  $3.00  <  •  t. 


VII.  CURTIS  ON  UNITED  STATES  COURTS. 

A  work  of  the  highest  standard  on  the  subject  treated  —Boston  Post. 

CURTIS  ON  THE  UNITED  STATES  COURTS.  —  Jurisdiction,  Practice,  and 
Peculiar  Jurisprudence  of  the  Courts  of  the  United  States.  By  Benjamin 
R.  Curtis,  LL.D.  Edited  by  George  Ticknor  Curtis  and  Benjamin 
l;.  Curtis.     12mo.     Cloth,  &2.50  net;  law  sheep,  $ 3.00  net. 

These  lectures  were  delivered  by  the  late  Judge  Curtis  to  a  class  of  students 
in  the  Harvard  Law  School,  in  the  academic  year  1872-73. 

Cannot  fail  to  be  of  great  service  to  the  student  in  the  prosecution  of  his  legal  studies. 
Chicago  Legal  News. 

It  is  by  far  the  best  epitome  of  that  extensive  subject,  and  the  clearness  of  the  style 
and  orderly  arrangement  of  the  learned  author  will  especially  recommend  it  to  students. 
Hon.  Edmund  II  Bennett,  Dean  of  School  of  Law,  Boston  University. 

There  is  not  to-day  in  existence  so  admirable  a  treatise  on  United  States  courts  and 
their  jurisdiction  as  this  little  book.  — Milwaukee  Republican. 

VIII.  MAY'S    CRIMINAL    LAW. 

I  have  carefully  examined  and  read  through  May's  Criminal  I.avv. 
This  work  is  certainly  one  of  distinguished  merit.  Its  definitions  and 
statements  of  principles  are  clear  and  concise.  lis  discussions  of  doi'bt- 
ful  or  controverted  points  are  calm  and  scholarly  The  cases  to  which 
it  refers  embrace  the  most  recent  English  and  American  decisions,  and 
therefore,  both  as  a  vade  mecutn  for  the  criminal  lawyer  and  as  a  text- 
book for  the  student,  it  must  at  once  take  a  high  position  in  the 
literature  of  that  branch  of  jurisprudence. — From  William  ('.  Robinson, 
Professor  of  Criminal  Law,  etc.,  Yale  College. 

THE  LAW  OF  CRIMES.  —  By  J.  Wilder  May,  Chief  Justice  of  the 
Municipal  Court  of  the  City  of  Boston.  Second  edition,  edited  by  Joseph 
Henry  Beale,  Jr.,  Assistant  Professor  of  Law  in  Harvard  University. 
12mo.     Cloth,  $2.50  net;  law  sheep,  $3.00  net. 

This  new  edition  of  Judge  May's  deservedly  popular  work  contain-  large 
additions.  The  editor  states  in  the  preface  that  the  original  plan  included  no 
discussion  of  the  subjects  of  Criminal  Pleading  and  Practice,  but  it  was  found 
that  it  would  be  better  adapted  to  the  use  of  students  if  these  subjects  were 
briefly  considered,  and  this  has  accordingly  been  dune.  Much  has  also  been 
added  to  the  first  chapter,  which  contains  the  general  principles  underlying  the 
criminal  law. 

It  is  to  be  especially  commended  for  its  clear  and  concise  definitions,  as  also  for  its 
citations  of  leading  cases  directly  upon  the  matter  under  discussion.  —  From  J.  II. 
Carpenter,  Dean  of  Law  Faculty,  University  of  Wisconsin. 

It  is  not  a  mere  synopsis,  but  an  interesting  discussion,  quite  full  enough  to  give 
the  student  a  true  view  of  the  subject,  and  minute  enough  to  be  a  useful  handbook  to 
the  practitioner.  — New  York  Law  Jon 


IX.     STIMSON'S   LAW    GLOSSARY. 

1 1  is  a  valuable  addition  to  the  Students' Series,  and  I  shall  cordially 
recommend  it  as  a  first  dictionary  to  our  students.  —  Hon.  Edmund  H. 
Benin  ttt  qf  I      .  B    Ion  I  rnivt  rsiiy. 

GLOSSARY  OF  TECHNICAL    TERMS,   PHRASES,    AND    MAXIMS    OF 
THE  COMMON  LAW.  — By  Frederic  Jesup  Stimson.     l2mo.     Cloth 

$2.50  in/ ;  law  sheep,  $3.00  mt. 

A  .-.  ,.  ,,  Law  Dictionarj',  giving  in  common  English  an  explanation  of  1 1 1  *  - 
words  and  phrases,  English  as  well  as  Saxon,  Latin,  or  French,  which  are  of 
common  technical  use  in  the  law. 

Specimen  of  tin-   Definitions   in  Stimson's   Law  Glossary. 


Power.  The  life  estate  which  the  widow 
has  in  her  husband's  lands  on  his  death  ; 
usually  one-third  part  of  any  lands  of 
which  he  was  seised  in  an  estate  of  in- 
heritance at  any  time  during  the  mar- 
riage, if  the  husband's  estate  in  such  lands 
was  such  that  the  common  isso 
have  inherited.  Dower  ad  ostium 
ecclesise,  I.  (at  the  church  door)  was 
anciently  where  the  husband  speciflcallj 
endowed  his  wife  with  certain  of  his  own 
lands ;  or  of  his  father's  lands,  Dower 
ex  assensu  patris.  tf  this  was  not 
dune,  she  was  assigned  her  Reason- 
able dower,  Dos  ratlonabilis,  /., 


Dower  by  the  common  law,  a  third 

part  of  the  husband's  land.  Power  by 
custom  :  varied  in  amount  according 
to  local  usage      Dower  de  la  pluis 

belle,  fr.   (of  the  fairest   part):    where 
the   wife  was   endowed   of   socage  lands 
held   by   her    as    guardian.      Writ  of 
dower  or  Writ  of  right  of  dower 
an   old  real    action    lying  for  a   widow 

against  a  tenant  who  had  deprived  her  of 
part  of  her  dower.    Power  mule  nihil 

habet,  I.  ■'  a  similar  writ  which  laj  for 
a  widow  to  whom  no  dower  had  been 
assigned. 


The  information  crowded  by  Mr.   Stimson  in  his  duodecimo  volume  of  a  little  mole 
than  three  hundred  pages,  is  \ ery  great  ;  hi-  explanations  are  given  with  remarkable 

brevity,  and  legal  technicalities  are  avoided  so  completely  as  to  make  the  work  a  valu- 
able and  welcome  supplement  to  the  common  English  Dictionaries  —  Boston  Daily 
Advert 


X.     ROBINSON'S    ELEMENTARY   LAW. 

The  book  is  convenient  to  the  instructor  who  will  use  it  as  a  text  to 
be  amplified  in  his  lectures,  and  valuable  to  the  student  who  will  con- 
sult the  references.  —  Prof.  M.  I'.  Force,  /././',  Cincinnati  l.nu  School. 

ELEMENTARY  LAW.  — By  William  C.  Robinson,  LL.D.,  Professoi  oi 
nentary  Law  in  Yale  College.  L2mo.  Cloth.  $2.50  net;  law  sheep, 
i  net. 

It  contains  a  statement  of  the  principles,  rules,  and  definitions  of  American 
Common  Law,  both  civil  and  criminal,  arranged  in  logical  order,  with  refer- 
ences to  treatises  in  which  such  definitions,  rules,  and  principles  are  more 
extensively  discussed. 

This  volume  is  used  largely  in  law  schools,  and  the  author  has  a  special 
knowledge  of  the  requirements  of  the  student,  being  a  leading  instrui  tor  at  the 


Law  School  of  Yale  College.     The  student  who  intelligently  studies  this  work 

may  store  his  mind  with  lucid  and  concise  statements  of  the  leading  topics  of 
law;  and,  having  been  grounded  in  this  primary  information,  a  course  of  read- 
ing is  laid  dowTi,  including  the  best  text-books  together  with  the  special  por- 
tions of  the  works  which  relate  to  the  subjects  in  question.  It  may  also  be 
used  with  great  benefit  as  a  review  book  for  examinations.  The  purpose  of 
this  most  useful  elementary  work  cannot  better  be  explained  than  by  here 
reprinting,  from  page  33,  Section  61,  relating  to  Transfer  of  Estates:  — 

Section  61.  Of  the  Ownership  and  Transfer  of  Estates. 
An  estate  may  belong  to  one  person  or  to  several  persons  collectively.  It 
may  also  be  transmitted  from  one  person  to  another,  or  lesser  estates  may  lie 
carved  out  of  it  by  the  owner  and  be  granted  to  others.  The  relation  between 
co-owners  or  successive  owners  of  the  same  estate,  or  between  persons  one  of 
whom  derives  his  estate  from  the  other,  is  known  as  privity  of  estate. 
Read  2  HI.  Coram.,  pp.  107,  179,  200,  201. 

1  Wash.  It.  P.,  B.  i,  Ch.  xiii,  Sec.  1,  §  1. 

2  Wash.  It.  P.,  B.  ii,  Ch.  i.  Sec.  1,  §  16. 
1  (ireenl.  F.v.,  §§  189,  523. 

The  principles  are  admirably  stated.  — Albany  Lair  Journal. 

It  would  be  a  benefit  to  every  law  student  to  put  this  volume  into  his  hand,  and  make 
it  his  throughout  the  whole  of  his  professional  studies.  —  Boston  Advertiser. 

It  might  worthily  be  adopted  as  a  text-book  for  every  senior  class  in  a  nialo  or  female 
college,  aud  will  be  found  an  invaluable  accession  to  every  public  and  private  library.  — 
.V'  <r  York  World. 

XL    EWELL'S  MEDICAL  JURISPRUDENCE. 

It  is  excellently  done.  I  wish  it  might  be  reatl  by  every  student  of 
law  as  well  as  by  every  student  of  medicine.  —  Prof.  Henry  Wade  Rogers, 
University  of  Michigan. 

A  MANUAL  OF  MEDICAL  JURISPRUDENCE  FOR  THE  USE  OF 
STUDENTS  AT  LAW  AND  OF  MEDICINE. -By  Marshall  I>.  Ewell, 
M.D.,  LL.D.,  of  the  Union  College  of  Law.  Chicago  l2mo.  Cloth,  82.50 
net;  law  sheep,  S3. 00  net 

Mr.  Ewell  has  endeavored  to  produce  a  work  which,  within  a  moderate  com- 
pass, states  all  the  leading  facts  and  principles  of  the  science  concisely  and  yet 
clearly.  In  it  will  be  found  the  substance  of  all  the  principles  stated  in  the 
more  voluminous  and  expensive  works. 

XII.     STEPHEN'S    DIGEST  OF    EVIDENCE. 

Short  as  it  is,  I  believe  it  will  be  found  to  contain  practically  the 
whole  law  of  the  subject.  —  The  author. 

A  DIGEST  OF  THE  LAW  OF  EVIDENCE.  —  By  Sir  James  Fitzjamfs 
Stephen,  K.C.S.I.,  a  Judge  of  the  High  Court  of  Justice,  Queen's  Bench 
Division.     From  the  Fourth  English  Edition.     With  Notes  and  Additional 


Illustrations  to  the  Present  Time,  chiefly  from  American  Cases,  including 
those  of  John  Wilder  May,  late  Chief  Justice  of  the  Municipal  Court  of 
the  City  oi  Boston,  author  of  "The  Law  of  Insurance,''  etc.  L2mo.  251 
pages.     Cloth,  52  50  net ;  law  sheep,  $3.00  net. 

A  full  ami  exact  reprint  of  the  Fourth  (latest)  English  Edition,  revised  by 
the  author,  with  references  to  American  cases.  Many  editions  of  the  work  have 
been  published  in  America,  hut  the  present  will  lie  found  to  be  the  must  useful, 
as  it  includes  the  very  valuable  notes  prepared  by  the  late  John  Wilder  May, 
author  of  "The  Law  of  Crimes,"  etc.,  together  with  a  selection  of  cases  and 
references  supplementing  his  important  editorial  work. 

XIII.  ROBINSON'S    FORENSIC    ELO- 

QUENCE. 

Tliis  is  a  book  which  no  student  of  law  fan  afford  to  pass  by  with- 
nut  a  thorough  study  of  it.  It  is  also  a  work  which  no  practising 
lawyer  who  understands  the  trial  of  causes  and  is  not  already  an 
acknowledged  leader  in  tbe  courts,  can  afford  not  to  read  and  read 
again. — American  Law  Review. 

FORENSIC  ELOQUENCE,  A  MANUAL  FOR  ADVOCATES.  —  By  William 
c.  Robinson,  Professor  of  Elementary   Law  in  Vale   College,  author  of 
"  II n-    Law  of    Patents  for   Useful    Inventions,"    "Elementary  Law,"  etc. 
12mo.    Cloth,  $2.50  net;  law  sheep,  $3.00  net. 
A  new  and  suggestive  work  on  the  Duties  and  Functions  of  the  Advocate. 

XIV.  BIGELOWS    BILLS,    NOTES,    AND 

CHECKS. 

AN  ELEMENTARY  TREATISE  ON  THE  LAW  OF  BILLS,  NOTES, 
AND  CHECKS  -By  Melville  M.  Bigelow,  Ph.D.,  author  ol  "An 
Elementary  Treatise  on  the  Law  of  Torts,"  etc.  12nio.  Cloth,  §2.50  net; 
law  sheep,  $3.00  nil. 

XV.  BRYANT    ON    CODE    PLEADING. 

PRINCIPLES  OF  CODE  PLEADING  FOR  THE  USE  OF  STUDENTS. 
By  lion.  Edwin  K.  Buyant,  Dean  of  Law  Department  of  State  Univer- 
sity of   Wist sin.     12mo.    Cloth,  $2.50  net;    law  slue].,  $3.00  net.    (In 

preparation.) 

XVI.  ABBOTT'S    LAW    OF    WILLS. 

ELEMENTS  OF  THE  LAW  OF  WILLS.  —  By  Natham  Abbott,  Ph> 
fessor  of  Wills,  etc.,  at  Northwestern  University,  Chicago.  l2mo.  (loth, 
$2.50  net;  law  sheep,  $3.00  net. 


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